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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


ABSTRACTERS   OF  TITLE 


THEIR  RIGHTS  AND  DUTIES  WITH  SPECIAL  REFERENCE 

TO  THE  INSPECTION  OF  PUBLIC  RECORDS, 

TOGETHER  WITH  A  CHAPTER  ON 

TITLE  INSURANCE 


BY 

WILLIAM  C.  NIBLACK 

OP  THE  CHICAGO  BAB. 


ADTHOR  OP 

MUTUAL  BENEFIT  SOCIETIES  AND  ACCIDENT  INSURANCE. 
THE  TOBRENS  SYSTEM,  ITS  COST  AND  COMPLEXITY. 


CHICAGO 

CALLAGHAN  &  COMPANY 

1908 


T 


Copyright,  1908 
By  Callaqhan  &  Company 


oe. 


PREFACE 

The  writer  of  this  treatise  has  been  connected  with  and  inter- 
ested in  title  companies  in  Chicago  for  the  past  twenty  years. 
Perhaps  this  fact  should  make  him  hesitate  to  present  this  work, 
and  yet  it  is  natural  that  he  should  write  on  subjects  in  which  he 
has  been  interested  and  with  which  he  has  been  familiar  for  so 
long  a  time.  In  view  of  the  great  and  increasing  number  of 
professional  abstracters  of  title  and  the  consequent  interest  in 
the  use  and  inspection  of  public  records,  it  is  timely  to  publish 
a  work  in  which  the  cases  bearing  on  the  rights  and  duties  of 
abstracters,  and  on  the  right  to  use  and  inspect  public  records, 
are  classified,  stated  and  reviewed.  Here  is  such  a  book.  Time 
and  use  will  tell  whether  it  has  added  to  the  exposition  of  the  law 
on  the  subjects  which  it  treats. 

There  is  in  it  some  reiteration  of  ideas  and  phrases.  This 
has  seemed  to  be  necessary  in  order  to  treat  fully  the  topics 
under  consideration.  When  a  writer  criticises  opinions  of  courts 
for  lack  of  clearness  and  analysis  in  discussing  the  issues  pre- 
sented in  cases,  it  is  incumbent  on  him  to  strive  to  avoid  these 
defects,  even  at  the  risk  of  repeating  himself. 

William  C.  Niblack. 
June  1,  1908. 


680696 

LAW 


TABLE  OF  CASES 


[The  references  are  to  sections.l 

Acer  V.   Wescott ^. »       12 

Aitcheson   v.   Huebner 78,  114 

Allen  V.  Clark 30,  33 

Allen  V.  Hopkins 5,  20,  25 

Am.  Trust  Inv.  Co.  v.  Abstract  Co 5 

Bank  v.   Waterman 35 

Banker   v.    Caldwell 1,  145 

Banks  v.  West  Pub.  Co 80,  84 

Barber  v.  Title  Guaranty  Co 74,  95,  96,  97,  133 

Barnard   v.    Carapau 11 

Barton  v.  Title  Co 161 

Battenhausen  v.   Bullock 13 

Batty  V.   Tout 5,  27,  30,  32 

Bean  v.  People 51,  53,  60,  76,  82,  87,  95,  98,  103,  106,  107,  112,  123 

Bell  V.  Davis 11 

Bell  V.  Title  Co 58,  62,  78,  94,  96,  108,  123,  124,  132 

Belt  V.  Abstract  Co 51,  97,  107,  123,  130 

Birdsall  v.  Russell 12 

Booth  V.  Phelps. 144 

Boyden  v.  Burke. 63,  69 

Boylan  v.  Warren 83,  87,  95,  123 

Brega  v.  Dickey 33 

Brewer  v.  Watson 52,  54,  63,  69,  70,  71,  73,  78,  87,  93,  102,  111 

Brown  v.  County  Treasurer ^ 80,  91 

Brown  v.  Sims 1,  5,  22,  30 

Buck  V.  Collins 51,  57,  87,  104,  106,  107,  109,  112,  123,  134 

Bulkley  v.  Gray 50 

Burnaby  v.   Equitable  Society 1 

Burton  v.  Reynolds 58,  66,  67 

Burton  v.  Tuite 55,  57,  70,  78,  88,  108,  109,  111,  112,  114,  115,  132,  135 

Byrnes  v.  Palmer 47 

Calder  v.  Chapman 6 

Caverly  v.  McOwen 46 

Chase  v.  Heaney 1,  5,  9,  30 

Chumasero  v.  Potts 73 

Clark  V.  Marshall 5 

Clay  V.  Ballard 77,  80,  91,  120,  132 


vi  TABLE  OF  CASES. 

[The  references  are  to  sections.] 

Clement  v.  Graham 73,  78,  93 

Coleman  v.   Commonwealth 77 

Cohion  V.  Orr - 87,  93 

Commonwealth  v.  Common  Council 73 

Commonwealth   v.   Donovan 16 

Commonwealth  v.  Ilarmer 18 

Commonwealth   v.    Owen 16,  38 

Commonwealth  v.  Walton 55,  70 

Constantine  v.  East 1 

Cormack  v.  Woleott 51,  53,  76,  84,  86,  87,  92,  103,  106,  107,  112,  123 

Cowley  V.   Pulsifer 68,  93 

Crawford  v.  Gaulden 35 

Daly  V.  Dimock 87,  93 

Dart  V.   Woodhouse 145 

Davidson  v.  Sechrist 145 

Davis  V.  Abstract  Constr.  Co 83,  142 

Day  V.  Button 62,  75,  114,  115 

D-ay  V,  Reynolds 18 

Denton  v.  Title  Co 5,  19,  23,  32,  33 

Diamond  Match  Co.  v.  Powers 01,  66,  74 

Dickinson   v.    Railroad    Co , 1 

Dickie  V.  Abstract  Co 5,   23,   30 

Dirks   V.    Collin 39,    141 

Disque    v.    Wright 11 

Dodd  V.  Williams 2,  6,  138 

Donaldson    v.    Haldane 49 

Dundee  Mtge.  Co.  v.  Hughes 5,  18,  19,  50 

Economy  Assn.  v.  Title  Co 5,  22,  30,  98 

Elimer  v.  Title  Co 46,  47,  98,  175 

EquiUble  Assn.  v.  Bank 4,  5,  18,  19,  24 

Ex    parte  Calhoun 53,    140 

Farmers'  L.  &  T.  Co.  v.  Maltby 6 

Fenton   v.   Perkins 14 

Fidelity   Ins.  Co.  v.  Earle 168 

Fidelity  Trust  Co.  v.  Clerk 67,  78,  83,  133,  142 

Fish  V.  Kelly 18,  50 

Fleming    v.    Hudson 78 

Foehrenbach   v.  Title  Co 109,   171 

Fox  V.  Thibault 5,  33,  3,5,  38,  178 

flafe  City  Abst.  Co.  v.  Post 20.  25,  27 

Onuler  v.  Solicitor's  Co 174,   175 

Cerman-Am.  Title  Co.  v.  Citizens  T.  &  T.  Co 175 

flilchrist    v.    Gough 12 

Cilman  v.   Hovey    1,   2,   5 

Gli-.watz  V.  People's  Guar.  Search  Co 26 

Governor   v.   Gordon 35 


TABLE  OF  CASES.  Til 

[The  references  are  to  sections.} 

Graham  v.   Title   Co 180 

Griflin    v.    Arlit 37 

Grundies   v.    Reid ^ 12,    13 

Hanson  v.  Eichstaedt 55,  70,  83,  105,  117,  132 

Hawes  V.  White    106 

Heil    and   Lauer's   Appeal 17 

Heinsen  v.   Lamb 1 

Hess    V.    Draffen 1 

Higgins  V.  Dennis 6 

Hirshiser  v.  Ward   27,  28,  30 

Hoover  v.   Weesner 1 

Houseman  v.  Girard  Assn 5,  18,  19,  23 

Humboldt  Assn,  v.   Ducker's   Ex'r 30,   47 

Hunter  v.   Windsor 63 

Hutchinson's  Appeal    11,    15 

In  re  Caswell 53,  71,  81,  83,  87,93 

In  re  Chambers 53,  55,  58,  70,  71,  86,  96,  106,  108,  122,  124,  136 

In    re    McLean 87 

Ireson    v.    Pearman 46 

Johnson  v.  Hess 12,   13,  182 

Jones  V.  McNarrin 11,    12,    182 

Kahl   V.    Love 18 

Kane  v.  Kippey    1 

Kenyon  v.  Improvement  Co 37 

Keuthen  v.  Trust  Co 33,  46 

Kimball  v.  Connolly 32,  33,  38 

Kniglit  V.   Quarles 19,    30 

Land  Title  Co.  v.  Tanner 87,  97,  104,  109 

Landon    v.    Townshend 180 

Lattin  v.  Gillette 27,  30,  35.   178 

Lawall  V.  Groman 33,  35,  49,   178 

Leon   Abstract   Co.   v.   Board 144 

Lilly  V.   Boyd 33,   35 

Loomis  V.  City  of  Jackson 143 

Loring    v.    Oxford 1 

Lowry    v.    Smith 13 

Lum  V.  McCarty 56,  57,  78,  95,  106,  114.  127 

Lusk  V.  Carlin 38,   59 

Lyman    v.    Edgarton 63 

McCaraher  v.  Commonwealth 5,  38,  84 

McCusker  v.  McEvoy   6,  138 

McLouth  V.  Hurt 13 

McNeehan    v,    Griffith. 13 

Mallory  v.   Ferguson 18,   42 

Mardis   v.    Shaokleford 35 

Marsh  v.  Sanders ^ 80,  83,  91 


Viii  TABLE  OF  CASES. 

[The  references  are  to  sections.] 

Mechanics'    Bldg.    Assn.    v.    W  hitacre 44 

Minn.  Title  Co.  v.  Droxel 151,  159,  1G2,  175 

l^Ioore  V.  Davis H,   13 

Moore    v.    Juvenal 35 

Morange  v.   Mix 5,   27 

Morauo  v.  Shaw 5,   IS 

Morse  v.  Curtis    6 

Myer   v.    Fegaly 1<> 

National   Savings   Bank  v.   Ward 5,    18,   50 

Nash    V.    Lathrop 80 

Newton  v.  Fisher 57,  95,  99,   123 

O'Barr  v.  Alexander   46 

Ocean  View  v.  Title  Guar,  Co 1*51 

O'Hara  v.  King -52,  64 

Owens   V.    Woolridge 87,    93 

Page  V.  Trutch   19,  48,  49 

Park  V.  Free  Press  Co 68,  93 

Parsons    v.    Randolph 60 

Payne  v.  Staunton 55,  70,  80,  87,  91,  128 

Peabody  Bldg.  Assn.  v.  Houseman 5,  23,  38 

People  V.   Cornell 87,    108 

People    V.    Fick 16 

People    V.    Hilliard 73 

People  V.  Nash    141 

People  V.  Hoilly 53,  58,  61,  62,  97,  115,   132 

People  V.   Richards 56,  66,  97,  115 

People  V.  Throop 54,  71 

People  V.  Walker 69 

Perry  v.  City  of  Big  Rapids 143 

Phelan  v.  State 78,  87,  102 

Philadelphia  v.  Anderson 5,  9 

Place  V.  St.  Paul  Title  Co 159,  160,  167 

Provident  Trust  Co.  v.  Walcott 5,  35,  36,  178 

Puckett  V.  Abstract  Co 27,  30,  32 

Purcell  V.  Land  Title  Co 150,  165,  177,  178 

Quigley  v.  St.  Paul  Title  Co 158,  165,  175 

Rader  v.  Committee 73 

Randolph  v.  State  62,  83,  87,  95,  102,  106,  123 

Rankin  v.  Schacffer 1,  5,  35,  48 

Ridgeway's  Appeal   11 

Roberts  v.  Abstract  Co 34 

Roberta  v.  Sterling 28,  32 

Roberts    v.    Vornholt 1 

Robson  V.  Tliomas 16 

Ross  V.  McLay 38 

Ru39  V.    Stratton 179 


TABLE  OF  CASES.  IX 

[The  references  are  to  sections.} 

Eussell  V.  Abstract  Co 5,  27,  30,  35 

Saylor    v.    Commonwealth 11 

Schade  v.  Gehner 1,  18,  19,  35,  48,  178 

Schmedding  v.   May 68,   93 

Scholes  V.  Brook 40,  49 

Scribner  v.  Chase 99 

Security  Abstract  Co.  v.  Longacre 5,  19,  30,  33 

Shirk    V.   Thomas 11 

Sievers   v.    Commonwealth 22 

Silver  v.   People 106 

Smith  V,  Holmes 5,  27,  28,  30,  44 

Smith  V.  Lamping 137,  141 

Smith  V.  Taylor 1 

St.  Paul  Title  Co.  v.  Johnson 106 

State  V.  Bradish   6,   138 

State  V.  Cummins 80,91 

State  V.  Deacon 39 

State  V.  Donovan 80,   91 

State  V.  Grimes 53,  57,  79,  80,  82,  84,  80,  92,  95,  98,  115,  123,  129 

State  V.  Hoblitzelle 80,  91 

State  V.  King 80,  83,  93,  117,  120 

State  V.  Leach 43 

State  V.  Long 83,  128 

State  V.  McCubrey 55,  70,  106,  131 

State  V.  McMillan 62,  83,  118,  132,  135,  137 

State  V.  Meeker 117 

State  V.  Rachac 83,  98,  111,  119,  137 

State  V.  Reed 67,  69,  78 

State  V.  Scow 58,  71,  98,  121,  131 

State  V.  Williams   (N.  J.) 72,  80,  86,  87,  91 

State  V.   Williams    (Tenn.) 71,   93 

Stensgaard  v.  St.  Paul  Title  Co 158 

Stevenson   v.   Polk 1 

Stewart  v.  Walker 95,  182 

Stocknan  t.  Brooks 73,  76,  103 

Symes  v.  Cutter 18,  28,  30 

Talpey  v.  Wright 19 

Taylor  v.  Harrison 12,   182 

Taylor    v.    Williams 1 

Territory  v.   Shearer 73 

Thomas  v,  Carson 9,  31 

Thomas  v.  Desney 12 

Thomas  v.  Schee 5,  18,  27 

Thomas  v.  Tradesmen's  Trust  Co 173 

Title  Guar.  &  Trust  Co.  v.  Sternberg 37 

Title  Guar.  Co.  v.  Wrenn 172 


X  TABLE  OF  CASES. 

[The  references  arc  to  sections.'] 

Townsend  v.   Register 87 

Trenton  Potteries  Co.  v.  Title  Guar.  Co 151,  170 

Trimble  v.   Stewart 5,  28,    151 

Tripp    V.    Hopkins D,  4G 

Turk   V.   Funk G 

Tyler  v.  Coultliard 145 

Union  Safe  Dep.  Co.  v.  Chisholm I 

U.  8.  Co.  V.  Linville 30,  32 

Upton  V.  Catlin 56,   75,  82 

Vallette    v.    Tedens 10 

Van  Scliaiek  v.  Sigel 5,  30,  34,  38 

Wacek   v.   Frink 3 

Waine  v.  Kenipster 46 

Wakefield    v.    Chowan 8 

Wasliington  Bank  v.  Abstract  Co 147 

Watson  V.  Cowdrey 33 

Webber  v.  Townley 87,  95,  101,  106,  107,  109,  123 

West  Jersey  Title  Co.  v.  Barber 96,  124,  133,  181 

Western  Loan  &  Sav.  Bk.  v.  Abstract  Co 5,  22 

Wlieeler  v.  Title  Co 1G4 

Whelan  v.   San   Francisco 78 

Wilcox  V.  Plummer's  Ex'ra 35 

Williams  v.  Hanley 27,  30,  32 

Wilson  V.  Tucker 3 

Winterbottom  v.  Wright 18 

Wittenbrock  v.   Parker 49 

Wood  V.  Reynolds 11,  15 

Wood  V.  Ruland 5,  18,  30 

Young  V.  Lohr 5,  19,  28 

Zeigler  v.  Commonwealth 5,  9,  38 

Zweigardt  v.  Birdseye 5,  18,  21 


CHAPTER  I. 

NATURE  OP  THE  UNDERTAKING  OF  AN  ABSTRACTER. 

§  1.  Generally.  When  a  person  engages  in  the  business  of 
searching  the  public  records,  making  abstracts  of  title  to  real 
estate  for  the  public  for  compensation,  he  does  not  become  an 
indemnitor  or  guarantor,  but  the  law  implies  that  he  assumes  to 
possess  the  requisite  knowledge  and  skill,  and  that  he  under- 
takes to  use  due  and  ordinary  care  in  the  performance  of  his 
duty.  Skill  as  well  as  care  is  required  in  his  undertaking,  and 
if  he  fails  to  exercise  either  and  injury  results,  he  is  liable 
in  damages.^  In  undertaking  to  prepare  an  abstract  of  title  to 
land,  an  abstracter  agrees  to  present  a  summary  of  the  records 
of  all  grants,  patents,  conveyances,  wills,  documents  and  all 
judicial  proceedings  which  may  affect  the  title  in  any  way,  and 
of  all  mortgages,  judgments,  taxes,  assessments,  mechanics'  liens, 
lis  pendens  notices  or  other  liens  which  may  incumber  the  title. 
He  should  set  forth  whatever  concerns  the  sources  of  title  and 
its  conditions,  whether  these  tend  to  confirm  the  title  or  to  im- 
pair it.^  The  contract  of  the  abstracter  is  that  he  will  ascertain 
and  report  the  condition  of  the  title  as  shown  by  the  records, 
and  the  abstract  and  certificate  which  he  furnishes  are  the  evi- 
dence of  the  way  in  which  he  has  performed  his  duty.  He  should 
set  out  every  part  of  an  instrument,  which  may  have  a  bearing  on 

1  Chase  v.  Heaney,  70  III.  268  liams,  2  Colo.  App.  559 ;  31  Pac. 
(1873).  Rankin  V.  Schaeffer,  4  Mo.  Rep.  504  (1892).  Union  Safe  Dep. 
App.  108  (1877).  Schade  v.  Geh-  Co.  v.  Chisholm,  33  111.  App.  647 
ner,  133  Mo.  252;  34  S.  W.  Rep.  (1889).  Smith  v.  Taylor,  82  Cal. 
576  (1895).  Brown  v.  Sims,  22  533;  23  Pae.  Rep,  217  (1890). 
Ind.  App.  247;  53  N.  E.  Rep.  779;  Ileinsen  v.  Lamb,  117  111.  540;  7 
72  Am.  St.  Rep.  308   (1899).  N.    E.    Rep.    75     (1886).      Kane   v. 

2  Banker  v.  Caldwell,  3  ]\Iinn.  94  Rippey,  22  Ore.  296;  23  Pac.  Rep. 
(Gil.  46)     (1859).     Taylor  v.   Wil-  180   (1892). 


2  ABSTRACTER. 

the  condition  of  the  title,  and  one  who  has  procured  an  ab- 
stract is  entitled  to  assume  that  any  part  which  is  not  set  out 
has  no  bearing.'  lie  must  decide  for  himself,  according  to  his 
judgment  and  experience,  whether  any  parts  of  an  instrument 
should  be  quoted  in  ipsis  verbis,  or  should  be  abstracted  merely. 
He  is  liable  for  resulting  loss  if  he  fails  to  make  all  necessary 
searches  or  if  he  searches  without  due  care.  He  is  bound  to 
know  that  what  he  certifies  to  is  true,  and  it  is  a  neglect  of  duty 
for  him  to  certify  to  what  is  error.*  The  necessity  for  skill  on 
the  part  of  the  abstracter  is  pointed  out  in  one  of  the  many 
definitions  of  an  abstract  of  title,  wherein  it  is  said  to  be  a  paper 
prepared  by  a  skilled  searcher  of  records,  which  shows  an 
abridgment  of  anything  affecting  the  title  and  appearing  on 
record  in  the  public  offices.*^ 

§  2.  Must  have  requisite  kuovsrledge.  A  professional  ab- 
stracter is  not  liable  if  he  mistakes  the  law  in  a  matter  of  diffi- 
culty where  the  law  is  not  well  settled,  but  if  he  certifies  that 
he  has  made  examination  and  finds  no  incumbrance  against  cer- 
tain property,  he  will  be  liable  if  an  incumbrance  is  of  record  in 
such  a  way  as  to  give  constructive  notice  to  everyone  interested. 
He  is  bound  to  know  what  is  and  what  is  not  a  lien  on  real  estate 
and  to  use  sufficient  diligence  to  find  any  incumbrance  properly 
of  record.  "Where  there  may  be  a  reasonable  doubt  as  to  whether 
a  certain  recorded  instrument  is  a  lien,  and  he  decides  that  it 
is  not,  he  does  so  at  his  own  peril.     If  he  does  not  wish  to  as- 

3Burnaby   v.   Equitable   Soc,    54  45  N.  E.  Rep.  650;  46  N.  E.  Rep. 

L.  J.  Ch.  466;   52  L.  T.  N.  S.  350  905    (1897).     Heinsen  v.  Lamb,  117 

(1885).  111.   549;   7  N.   E.   Rep.   75    (1886). 

4Gilman   v.   Hovey,   26   Mo.    280  Union   Safe  Dep.   Co.  v.   Chisholm, 

(1858).  33  111.  App.  647    (1889).     Constan- 

6  Smith  V.  Taylor,  82  Cal.  533  p.  tine  v.  East,   8  Ind.  App.  291;   35 

645;     23     Pac.     Rep.    217      (1800).  N.    E.    Rep.    844     (1893).      Loring 

There   are   many   definitions   of   an  v.  Oxford,  18  Texas  Civ.  App.  415; 

jabstract  of  title,  and  some  of  them  45   S.   W.   Rep.   395    (1898).     Stev- 

are    given    with    reference    to    the  enson    v.    Polk,    71    Iowa    278;    32 

points   at  issue  in  the  cases.     See  N.    VV.   Rep.    340    (1887).     Banker 

Warvclle  on   Abstracts,   §   2.     Mar-  v.   Caldwell,   3   Minn,   94    (Gil.  40) 

tindale  on  Abstracts,  §  3.     1  Bouv.  (1859).     1  Am.  &  Eng.  Enc.  Law. 

L.    Diet.   47.      Anderson's    L.    Diet.  (Rev.   Ed.),   p.   211.      Dickinson   v. 

9.      Roberts   v.    Vornholt,    126    Ind.  Railroad  Co.,  7  W.  Va.  390,  p.  413 

511;    26    N.    E.    Rep.    207     (1890).  (1874).      Hess   v.   DrafTcn,   99    Mo. 

Hoover  v.   Wccsner,   147   Ind.   510;  App.  68;  74  S.  W.  Rep.  440  (1903). 


SKILL  AND  CARE.  3 

smne  this  liability,  he  may  avoid  it  by  noting  the  instrument.^ 

§  3.  Must  examine  the  record  of  instruments.  When  an  ab- 
stracter is  employed  to  make  an  abstract  of  title,  the  fair  and 
reasonable  import  of  his  undertaking  is  that  he  will  make  a 
full  and  true  search  and  examination  of  the  records  relating  to 
the  title  to  the  i:)roperty  and  will  note  on  the  abstract  accurately 
every  transfer,  conveyance  or  other  instrument  of  record  in  any 
way  affecting  the  title.  The  record,  and  not  a  marginal  refer- 
ence to  it  made  by  the  register  of  deeds,  is  what  determines  the 
character  and  legal  effect  of  an  instrument,  and  the  abstracter 
does  not  fulfill  his  duty  by  merely  assuming  the  accuracy  of  such 
a  marginal  reference,  without  examining  the  instrument  itself. 
A  register  of  deeds,  in  making  a  reference  to  a  partial  release 
on  the  margin  of  the  record  of  a  mortgage,  erroneously  described 
it  as  a  full  satisfaction.  An  abstracter,  in  preparing  an  abstract 
of  title  for  his  employer,  relied  on  this  reference  which  gave  the 
date  and  place  of  record,  and,  without  examining  the  record  of 
the  release,  described  it  as  a  satisfaction  of  the  mortgage.  It 
was  held  that  the  abstracter  was  guilty  of  negligence  in  not 
examining  the  record  of  the  release  and  in  relying  on  the  mar- 
ginal reference,  and  that  the  trial  court  erred  in  not  so  in- 
structing the  jury.^  He  may  not  rely  on  extracts  made  from  a 
will,  without  examining  the  record  of  it.* 

§  4.  Instruments  inserted  must  be  correctly  set  out.  An  ab- 
stracter may  present  to  his  employer  a  mere  index  to  the  records, 
with  the  mutual  expectation  and  understanding  that  the  e^n- 
ployer  will  examine  for  himself  the  records  referred  to.  But 
vvhere  the  abstract  purports  to  state  the  contents,  substance  and 
vital  parts  of  a  deed,  will  or  other  instrument,  and  there  is 
nothing  on  the  face  of  the  abstract  to  indicate  that  a  mistake 
or  error  has  been  made  in  the  statement,  the  employer  is  justi- 
fied in  relying  on  it,  without  making  an  original  investigation 
and  he  is  not  guilty  of  negligence  in  so  doing.  An  abstract  of 
title  contained  a  certificate  that  it  contained  all  conveyances  as 
shown  by  the  records  in  the  register's  office.     The  body  of  the 

6Dodd  V.  Williams,   3   Mo.  App.  53    N.    W.    Rep.    633;    38    Am.    St. 

278    (1877).     Gilman  v.  Hovey,  26  Rep.   502    (1892). 

Mo.  280    (1858).  s  Wilson  v.  Tucker,  3  Starkie,  154 

TWacek  v.  Frink,  51  Minn.  282;  (1822). 


4  ABSTRACTER. 

abstract  referred  to  tx  will  as  part  of  the  chain  of  title,  as  shown 
by  a  will  book  which  was  required  to  be  kept  in  the  county 
clerk's  office.  It  was  held  that  having  referred  to  the  will, 
although  it  was  not  embraced  in  the  terms  of  his  certificate, 
the  abstracter  was  required  to  set  out  its  terms  correctly  and 
was  liabel  for  injury  for  not  having  done  so." 

§  5.  Liability  for  errors  or  omissions.  "Where  an  abstract 
contains  an  error,  and  through  reliance  on  its  correctness  the 
employer  has  sustained  an  injuiy,  he  may  hold  the  abstracter 
liable  therefor  to  the  extent  of  the  injury  sustained,  provided 
the  error  is  such  as  could  have  been  avoided  by  the  exercise  of 
ordinary  care  and  skill  on  the  part  of  one  possessing  qualifica- 
tions adapted  to  the  business  of  abstracting.  Where  an  ab- 
stracter furnished  to  his  employer  an  abstract  which  purported 
to  set  out  the  contents  of  a  will  as  devising  the  property  in 
fee,  while  in  fact  it  devised  only  a  life  estate  to  the  mortgagor, 
he  failed  to  exercise  a  proper  degree  of  care  and  skill,  and  the 
employer,  injured  by  relying  on  the  abstract,  is  entitled  to  re- 
cover.^^  An  abstracter  is  liable  for  damages  sustained  through 
his  failure  to  disclose  in  the  abstract  an  unsatisfied  judgment 
which  is  a  lien  on  the  land  referred  to  in  it,^^  or  to  set  out  a 
sale  of  the  land  for  taxes,^^  or  taxes  on  the  land,^^  or  a  special 
assessment,^*  or  to  note  prior  recorded  conveyances  of  the  land,^° 

» Equitable    Assn.    v.    Bank,  227    (1849).      Russell    v.    Abstract 

Tenn.  ;    102    S.    W.    Eep.    901  Co.,  87  Iowa  233;    54  N.  W.   Rep. 

(I'JOT).  212;   43   Am.   St.  Rep.  381    (1893). 

10  Equitable  Association  v.  Bank,  Provident  Trust  Co.  v.   Walcott,  5 
Tenn.       ;   102  S.  W.  Rep.  901  Kan.    App.    473;    47    Pac.    Rep.    8 

(1907).  (1805). 

11  Western  Loan  Co.  v.  Abstract  12  Chase  v.  Heaney,  70  111.  268 
Co.,   31    Mont.   448;    78    Pac.    Rep.       (1873). 

774;   107  Am.  St.  Rep.  435   (1904).  i3  Philadelphia  v.  Anderson,    142 

Brown  v.  Sims,  22  Ind.  App.  247;  Pa.    St.    357;     21    Atl.    Rep.    976 

63    N.    E.    Rep.    779;    72    Am.    St.  (1891).    Trimble  v.  Stewart,  35  Mo. 

Rep.  308    (1899).     Denton  v.  Title  App.  537    (1889). 

Co.,  112  Tenn.  320;   79  S.  W.  Rep.  i*  Morange  v.  Mix,  44  N.  Y.  315 

799    (1903).      Young   v.   Lohr,    118  (1871). 

Iowa,    624;    92    N.    W.    Rep.    G84  is  Dickie     v.     Abstract     Co.,     89 

(1902).     Zwoigardt  v.  Binlseye,  57  Tenn.  431;    14  S.  W.   Rep.   896;   24 

Mo.  App.  402    (1894).     Oilman  v.  Am.    St.    Rep.    616     (1890).      Sav- 

Ilovey,  20  Mo.  280    (1858).     Zieg-  inj,'3  Bank  v.  Ward,  100  U.  S.  195 

ler    V.    Commonwealth,    12    Pa.    St.  (1379). 


EECORDING  LAWS.  5 

or  a  prior  recorded  mortgage,^®  or  a  pending  suit  to  recover  the 
land,"  or  a  suit  in  attachment/^  or  to  report  correctly  the 
quantity  of  land  previously  conveyed.^^  He  is  liable  where  the 
abstract  presents  as  a  conveyance  an  instrument  which  does  not 
purport  to  convey  the  land.^"  An  appeal  from  a  judgment 
does  not  destroy  the  lien,  but  only  suspends  the  execution  of  the 
judgment.  An  abstracter  of  title  must  show  a  judgment  which 
is  a  lien  on  the  property  under  examination,  although  it  has 
been  appealed  from.^^ 

§  6.  Conveyance  by  grantee  before  he  obtains  title.  Under 
the  recording  laws  of  some  states  a  deed  by  a  grantee  of.  land, 
made  and  recorded  before  he  obtained  title,  is  not  constructive 
notice  to  persons  subsequently  dealing  with  the  land,  and  an 
abstracter  is  not  guilty  of  negligence  in  not  finding  it  and  set- 
ting it  out  in  the  abstract  of  title.-^  One  purchasing  subsequent 
to  the  deed  conveying  the  legal  title  to  his  grantor  is  not  charged 
by  the  records  with  knowledge  of  a  mortgage  by  his  grantor, 
made  and  recorded  before  the  latter  obtained  title."  A  search 
for  mortgages  against  one  who  has  held  or  is  holding  the  title 
to  the  property  in  question  should  begin  from  the  time  of  the 
conveyance  to  him,  and  a  mortgage  on  the  property  given  by 

i«  Dundee  Mtge.    Co.   v.   Hughes,  App.  108  (1877).    Thomas  v.  Schee, 

20  Fed.   Rep.  39    (1884).     Peabody  80   Iowa  237;    45   N.   W.   Rep.   539 

Bldg.    Assn.   V.   Houseman,    89    Pa.  (1890). 

St.  261;  33  Am.  Rep.  757  (1879).  is  Security  Abstract  Co.  v.  Long- 
Houseman  V.  Girard  Assn.,  81  Pa.  acre,  56  Neb.  469;  76  N.  W.  Rep. 
St.  256    (1876).     Smith  v.  Holmes,  1073    (1898). 

64  Mich.   104;    19  N.  W.  Rep.  767  i9  Clark  v.  Marshall,  34  Mo.  429 

(1884).     Van   Schaick  v.  Sigel,   58  (1864.)       See   Am.   Trust   Inv.    Co. 

How.    Pr.    211;    60   How.    Pr.    122  v.   Nashville  Abstract  Co.    (Tenn.), 

(1880).      McCaraher    v.     Common-  39  S.  W.  Rep.  877    (189G). 

■wealth,  5  Watts  &  Serg.  21    (1842).  20  Thomas  v.  Schee,  80  Iowa,  237; 

Morano  v.   Shaw,  23   La.   Ann.   379  45  N.  W.  Rep.  539    (1890). 

(1871).     Allen  v.  Hopkins,  62  Kan.  21  Denton  v.  Title  Co.,  112  Tenn. 

175;     61     Pac.     Rep.     750     (1990).  320;  79  S.  W.  Rep.  799    (1903). 

Economy  Assn.  v.  Title  Co.,  64   N.  22  Dodd  v.  Williams,  3  Mo,  App. 

J.  L.  27;  44  Atl.  Rep.  854    (1899).  278    (1877),   where  the  authorities 

Batty  V.  Fout,  54  Ind.  482    (1876).  are  reviewed  at  length. 

Fox   V.    Thibault,    33    La.    Ann.    32  23  Farmers  L.   &  T.   Co.  v.  Malt- 

(1881).      Wood  V.   Ruland,    10  Mo.  by,  8  Paige  Ch.  361    (1840).     Turk 

143    (1846).     But  see  Dodd  v.  Wil-  v.  Funk,  68  Mo.  18    (1878).     Morse 

liams,  3  Mo.  App.  278    (1877).  v.  Curtis,   140  Mass.   112;   2  N.  E. 

"Rankin    v.     Schaeffer,    4    Mo.  Rep.  929    (1885). 


6  ABSTRACTER. 

liim  and  recorded  before  the  date  of  the  deed  to  him  will  not 
be  constructive  notice.-*  "When  a  searcher  finds  a  deed  or  other 
instrument  filed  for  record  on  a  certain  day,  diligence  requires 
tliat  he  shall  examine  the  records  for  the  whole  of  that  day. 
"While  with  respect  to  the  time  of  filing  instruments  for  record 
the  law  takes  notice  of  fractions  of  a  day,  the  general  principle 
that  the  law  takes  no  notice  of  fractions  of  a  day  applies  to 
the  execution  of  deeds  and  mortgages,  where  the  hour  of  their 
execution  does  not  appear.  The  rule  requires  a  searcher  to  go 
back  to  the  time  of  the  execution  of  the  deed,  and  hence  he  must 
commence  his  search  at  the  beginning  of  the  day."^ 

§  7.  Reason  for  the  rule.  The  reason  for  the  rule  that  a 
mortgage  or  conveyance  by  a  grantor  made  and  recorded  before 
he  obtained  title  is  not  constructive  notice  is  founded  on  the 
recording  laws.  They  provide  for  indices  of  grantors  and  gran- 
tees to  enable  the  public  to  examine  the  records.  In  searching 
them  to  trace  the  title  from  the  government,  the  patentee  of  the 
land  is  found.  From  the  time  he  obtained  title,  his  name  is 
searched  in  the  alphabetical  list  of  grantors  to  find  a  conveyance 
from  him.  "When  a  conveyance  from  him  to  A.  is  found  he 
becomes  a  stranger  to  the  title,  and  the  search  is  continued  in  the 
alphabetical  list  of  grantors  from  the  date  of  the  conveyance  to 
A.  to  find  a  conveyance  from  him.  AVhen  he  conveys  to  B.  the 
search  ceases  as  to  him  and  begins  with  B.  from  the  date  of 
the  conveyance.  This  method  of  search  goes  on  down  to  con- 
veyances to  Z,  the  present  owner.  It  would  be  unscientific,  if 
not  absurd,  to  require  the  searcher  to  examine  for  each  grantee 
from  A.  to  Z.,  from  the  government  down  to  the  present  time, 
to  discover  whether  anyone  of  them  conveyed  or  mortgaged  the 
land  before  he  got  title.  And  again,  in  searching  back  to  the 
government  patent  from  Z.,  the  present  known  owner  of  the 
land,  the  search  for  conveyances  by  Z.  would  be  back  to  his  deed 
from  Y.  and  the  search  back  from  that  date  would  be  against 
Y.  and  not  against  Z.  Back  of  Y.  the  search  would  be  seriatim 
against  each  of  those  through  whom  he  claimed  from  the  re- 
spective dates  of  the  conveyances  from  him  to  the  date  of  the 

24Calder  v.  Cliapman,  52  Pa.  St.  Rawle   on  Cov.   Title    (5th   Ed.),   § 

359    (18GG).     See  State  v.  Bradiah,  259. 

14    y\n.!^H.    296     (1817).      McPiisker  25  JTignrins    v.    Dennis,    104    Iowa 

V.   .McEvoy,    10    R.    I.    GIO    (1874).  G05;   74  N.  W.  Rep.  9    (1898). 


COXTINX'ATIOX  FEOM  DATE.  T 

conveyance  to  him.  It  would  be  a  hardship  out  of  proportion  to 
the  advantage  to  be  gained  to  require  the  examiner  to  follow 
back  to  the  government  patent  the  names  of  each  of  the  grantees 
who  at  any  time  held  the  title,  in  order  to  be  sure  that  no  one 
of  them  had  ever  conveyed  or  mortgaged  the  land  before  he  got 
title  to  it.  One  may,  perhaps,  feel  that  a  searcher  may  be  re- 
quired to  look  back  for  a  day  or  two  to  see  whether  a  grantee 
had  conveyed  or  mortgaged  the  land  before  he  actually  got  the 
title,  but  if  he  is  required  to  look  back  for  a  day  or  two,  the  prin- 
ciple involved  will  require  him  to  look  back  for  ten,  twenty  or 
any  number  of  years  beyond  what  is  called  "the  line  of  title." 

It  is  not  necessary  to  inquire  whether  this  rule  is  of  universal 
application  according  to  the  American  system  of  constructive 
notice  under  the  recording  laws.  The  method  of  searching  the 
indices  of  grantors  and  grantees  as  designed  by  those  laws  is 
being  abandoned,  and  search  by  means  of  a  tract  index  is  taking 
its  place.  A  tract  index  will  disclose  at  a  glance  any  convey- 
ance or  mortgage  from  a  grantee,  recorded  within  a  short  time 
before  he  obtained  title  and  will  give  actual  notice  of  any  such, 
instrument.  When  actual  notice  of  a  recorded  instrument  is 
given  to  a  searcher  of  the  title  he  and,  if  he  is  an  agent,  his 
principal  are  deprived  of  the  protection  of  the  recording  laws. 

§  8.  Continuation  of  abstract  from  a  specified  date.  Where 
an  abstracter  is  employed  to  make  and  furnish  an  abstract  of 
title  to  certain  land  from  and  after  a  certain  specified  date,  he 
is  not  bound  to  inquire  or  state  whether  the  title  which  vested  in. 
any  grantee  during  the  time  covered  by  the  search  is  affected 
by  any  prior  m.ortgage  or  conveyance,  or  by  any  estoppel  grow- 
ing out  of  any  covenants  in  any  such  conveyance.  This  rule 
may  be  based  on  the  principles  and  necessities  of  the  recording 
acts,  which  were  discussed  in  the  preceding  section,  as  well 
as  on  the  limited  employment  of  the  abstracter,  which  assumes 
that  no  instruments  of  conveyance  are  to  be  examined  prior  to 
the  specified  date.  But,  in  the  absence  of  instructions  to  the  con- 
trary, an  abstracter  is  bound  to  examine  and  certify  for  judg- 
ments the  name  of  any  grantee  who  has  taken  title  to  the  land 
during  the  period  covered  by  the  search.  This  examination 
must  be  for  judgments  at  any  time,  which,  in  the  business  of 
abstract  making,  means  for  a  time  beyond  which  judgments 
necessarily  will  be  barred  by  the  statute  of  limitations.     He  does 


8  ABSTRACTER. 

not  perform  liis  duty  by  examining  for  judgments  back  to  the 
specified  date  from  which  he  is  to  note  conveyances,  for  a  judg- 
ment against  a  grantee,  rendered  at  any  time  within  the  limita- 
tion of  the  statutes,  will  at  once  become  a  lien  on  the  deliveiy 
of  the  deed  to  him.  The  very  purpose  of  an  abstract  is  to  show 
the  true  condition  of  the  title  at  the  date  to  which  it  is  con- 
tinued, and  no  rule  under  the  recording  acts  precludes  the  ne- 
cessity for  searching  for  judgments  at  any  time  against  every 
grantee  of  the  property  in  question.  These  propositions  seem 
simple  and  certain.  In  one  case,  however,  an  abstract  was  or- 
dered from  October  1,  1872  to  date,  November  24,  1877.  The 
abstracter  did  not  search  for  judgments  prior  to  October  1, 
1872,  and  did  not  note  on  the  abstract  an  unpaid  and  unsatis- 
fied judgment  rendered  in  June,  1870  against  A.  wdio  acquired 
title  to  the  premises  in  October,  1874,  as  shown  by  the  abstract. 
One  entry  on  the  abstract  simply  said:  *'No  judgments.** 
The  court  said:  ''This,  taken  in  connection  with  the  rest  oi 
the  abstract,  clearly  means  that  there  are  no  judgments  en- 
tered of  record  since  October  1,  1872,  which  in  any  way  affect 
the  title  or  create  any  lien  upon  the  premises."^*  This  de- 
cision clearly  holds  that  the  contract  to  furnish  an  abstract  to 
certain  lands  from  and  after  a  specified  date  creates  no  obliga- 
tion on  the  abstracter  to  note,  against  a  grantee  of  the  title 
after  that  date,  an  unsatisfied  judgment  which  only  appears  of 
record  prior  to  that  date,  but  it  is  not  founded  on  good  prin- 
ciples of  abstract  making  and  is  too  narrow  and  technical.  A 
diligent  and  skillful  abstracter  will  s(>arch  every  grantee  of  the 
title  for  judgments  at  any  time,  and  if  he  has  been  instructed  not 
to  search  prior  to  a  specified  date,  that  fact  should  be  expressly 
stated  in  his  certificate.  In  view  of  the  purposes  for  which  ab- 
stracts are  ordered,  it  is  not  likely  that  he  will  ever  receive  any 
such  instructions.  No  vague  certificate  that  there  are  "no  judg- 
ments" should  shield  him  from  liability  for  omitting  to  make 
the  search  for  judgments  at  any  time. 

§  9.  Certificate  to  abstract  limiting  liability.  An  abstracter 
may  not  limit  his  liability  by  a  vague  and  obscure  certificate  to 
the  abstract.  If  he  has  not  performed  his  duty  in  a  thorough 
and  skillful  manner,  or  if  he  discovers  that  he  cannot  furnish  a 

20  Wakefield  v.  Chowen,  2G  Minn.     379;  4  N.  W.  Rep.  G18    (1880). 


RELATION  OF  TRUST.  9 

complete  and  trustworthy  abstract,  it  is  his  duty  to  state  such 
matters  clearly  in  his  certificate  and  to  give  his  employer  such 
notice  as  will  put  the  latter  on  his  guard.  If  no  such  notice  is 
clearly  given,  the  employer  will  have  a  right  to  rely  on  the 
completeness  of  the  abstract.^'^  Where  an  abstract  of  title  con- 
tains a  certificate  that  the  records  have  been  carefully  examined 
in  the  offices  of  the  county  clerk,  the  clerk  of  the  district  court 
and  the  county  treasurer  and  that  there  are  no  liens  on  the 
property  *'upon  or  in  the  records  of  either  of  the  said  three 
offices,  to-wit,  county  clerk's  office,  office  of  the  clerk  of  the  dis- 
trict court  and  treasurer's  office,  except  as  hereinbefore  set 
out,"  the  abstracter  is  not  liable  on  account  of  the  omission  from 
the  abstract  of  a  prior  mortgage  on  the  property,  then  of  record 
in  the  office  of  the  register  of  deeds.-^  A  certificate  by  an  ab- 
stracter that  he  finds  of  record  no  liens  on  the  property  in  ques- 
tion is  equivalent  to  a  certificate  that  there  is  none  of  record.-'' 
§  10.  Relation  of  trust  and  confidence.  A  person  engaged  in 
the  business  of  making  abstracts  of  title  occupies  a  relation  of 
trust  and  confidence  toward  those  who  employ  him,  and,  in  the 
sacredness  of  its  nature,  this  relation  is  second  only  to  that 
which  a  lawyer  sustains  to  his  client.  He  is  bound  to  disclose 
to  his  employer  all  pertinent  information  acquired  by  him  in 
the  course  of  his  investigations,  and  must  not  disclose  to  anyone 
else  anything  which  might  be  prejudicial  to  his  employer's  in- 
terests. He  becomes  familiar  with  the  histories  of  titles,  handles 
private  papers  and  learns  of  weaknesses  and  defects  in  his  em- 
ployer's titles.  He  is  debarred  from  making  use  of  such  in- 
formation for  his  private  gain  or  advantage  and  may  be  made 
to  account  for  any  abuse  of  his  confidential  employment.  He 
may  not  purchase  for  himself  any  adverse  title  to  that  of  his 
employer,  and  may  not  purchase  land,  the  title  to  which  he  has 
been  employed  to  search,  so  long  as  his  employer  has  a  prospec- 
tive interest  in  it.  If  he  offends  in  these  respects,  equity  will 
require  that  he  hold  the  title  in  trust  for  his  principal.  He  will 
be  held  to  a  strict  responsibility  in  the  exercise  of  his  duties.^" 

27  Chase   v.   Heaney,    70    111.    268  Pa.   St.   227    (1849).     Philadelphia 
(1873).  V.    Anderson,    142   Pa,   St.    357;    27 

28  Thomas    v.     Carson,     4G     Neb.  Atl.    Rep.    97G     (1891).      Tripp    v. 
765;  65  N.  W.  Rep.  890    (189G).  Hopkins,   13  R.   I.  99    (1880). 

29Ziegler    v.    Commonwealth,    12  so  Vallette     v.     Tedens,     122     111. 


10  ABSTRACTER. 

§  11.  Names  of  judgment  defendants.  One  of  the  undertak- 
ings of  an  abstracter  is  to  set  forth  the  liens  on  the  property  in 
question,  and  perhaps  judgments  are  the  most  difneult  liens  with 
which  he  has  to  deal.  In  making  an  abstract  of  title  he  is,  Avith 
respect  to  judgments,  the  agent  and  representative  of  subse- 
quent purchasers,  incumbrancers  or  judgment  creditors,  and  he 
must  know  the  principles  of  constructive  notice  which  govern 
them.  As  such,  he  must  be  skillful  in  determining  whether 
judgments  of  record  are  against  persons  in  whom  he  is  for  the 
time  interested,  and  whether  the  name  of  a  judgment  defendant 
is  the  same  in  legal  effect  as  the  name  for  which  he  is  searching 
the  judgment  docket.  He  must  know  the  rules  w^hich  govern 
names  and  be  familiar  with  the  principles  of  idem  sonans. 
While  a  judgment  in  most  states  is  a  general  lien,  it  is,  in  strict- 
ness, simply  a  charge  against  any  interest  of  the  judgment  de- 
fendant in  lands  within  the  county  where  rendered,  existing 
by  virtue  of  a  statute  and  operating  through  a  record  against 
the  person  of  such  defendant.  In  cases  of  mortgages  and  such 
instruments,  the  lien  owes  its  force  and  existence  partly  to  the 
contract  of  the  parties,  but  in  cases  of  involuntary  liens,  such 
as  judgments  and  attachments,  the  lien  owes  its  entire  force 
and  vitality  to  the  provisions  of  the  statute.^^  Assuming  juris- 
dictional facts,  a  judgment  must  have  a  date  of  rendition,  must 
be  for  a  definite  amount  of  money  and  must  name  the  judg- 
ment plaintiff  and  defendant.  In  treating  of  judgments  here 
we  shall  confine  ourselves  to  the  name  of  the  judgment  defend- 
ant, the  one  against  whom  the  judgment  was  rendered.  The 
record  of  a  judgment  can  only  be  constructive  notice  of  that 
which  is  contained  within  itself,  and  in  order  to  be  a  charge  on 
the  land  of  the  judgment  defendant  as  against  subsequent  pur- 
chasers, incumbrancers  and  judgment  creditors,  it  must  con- 
tain his  name  with  such  reasonable  accuracy  that  if  they  should 
examine  it  they  would  obtain  from  it  actual  notice  of  all  the 
rights  which  were  intended  to  be  created  or  conferred  by  it. 
While  a  judgment  is  good  between  the  parties  even  if  the  name 

607;    14  N.  E.   Rep.  52;   3  Am.  St.  Jones    v.    McNarrin,    68    Me.    334 

Kep.   502    (1887).  (1878).     Moore  v.  Davis,  58  Mich. 

81  Shirk  V,  Thomas,  121  Tivl.  147;  25     (1885).      Barnard    v.    Campau, 

22   N.    E.    Rep.    076     (1889).      Bell  29  Mich.   1G2    (1874). 
V.    Davis,     75     Ind.     314     (1881). 


IDEM  SONANS.  11 

of  the  defendant  is  seriously  incorrect  in  the  record,  as  against 
subsequent  purchasers,  incumbrancers  and  judgment  creditors,  it 
is  the  duty  of  a  plaintiff  to  see  that  his  judgment  is  in  all  respects 
properly  entered  and  that  the  name  is  so  set  forth  in  the  record  as 
to  disclose  the  identity  of  the  judgment  defendant.^^  To  import 
constructive  notice,  the  record  of  the  judgment  must  show  whom 
it  is  against,  without  reference  to  other  facts  or  instruments.^^ 
A  searcher  of  the  records,  representing  subsequent  dealers  with 
the  subject-matter  of  the  judgment,  is  entitled  to  assume  that  the 
plaintiff  knew  the  name  of  his  debtor  and  that  the  clerk  of  the 
court  made  no  mistake  in  entering  up  the  judgment. 

§  12.  Under  the  recording  acts  subsequent  purchasers,  in- 
cumbrancers and  judgment  creditors  are  called  on  to  search  the 
records,  and  they  have  a  right  to  rely  on  the  names  of  judg- 
ment defendants  as  they  find  them  entered  on  the  records.  If 
they  find  the  surname  for  which  they  are  searching,  but  find  an 
entirely  different  given  name  from  the  one  they  are  searching 
for,  they  are  entitled  to  conclude  that  the  judgment  is  .not 
against  the  person  in  whom  they  are  interested.  Where  a  judg- 
ment is  on  record  against  William  ]\I — ,  intending  purchasers 
are  not  chargeable  with  notice  that  it  is  really  against  H.  W. 
M —  in  whom  they  are  interested,  and  that  William  M —  and 
H.  W.  M —  are  the  same  person.  The  record  of  the  judgment 
does  not  disclose  these  facts  and  does  not  necessarily  suggest  in- 
quiry which  would  lead  up  to  an  ascertainment  of  such  facts.^* 
Helen  and  Ellen  are  distinct  names,  and  a  judgment  against 
Ellen  D —  is  not  constructive  notice  of  a  charge  against  the 
lands  of  Helen  D — .^^  Where  the  record  of  a  judgment  does 
not  show  that  the  judgment  defendant  is  known  both  as  Charles 

32  Wood  V.  "Reynolds,  7  Watts  &  v.  Harrison,  47  Texas   454;  26  Am. 

Serg.  406    (1844).     Ridgeway's  Ap-  Rep.  304    (1877).     Birdsall  v.  Rus- 

peal,  15  Pa.  St.  177  (1850).    Hutch-  $ell,    29    N.    Y.    220,    250     (18G4). 

inson's    Appeal,     92     Pa.     St.     186  Jones  v.  McNarrin,  68  Me.  334;  28 

(1879).     Saylor  v.  Commonwealth,  Am.  Rep.  66   (1878).     Acer  v.  Wes- 

6   Atl.   Rep.   227    (1886).     Pa.   not  cott,    46    N.    Y.    384;    7    Am.    Rep. 

reported.  355     (1871).      Gilchrist    v.    Gough, 

33Disque  v.  Wright,  49  Iowa   538  63  Ind.  576   (1878). 

(1878).  35  Thomas  v.  Desney,  57  Iowa    58 

34  Johnson  V.  Hess,  126  Ind.  298;  (1881). 
25  N.  E.  Rep.  445    (1890).     Taylor 


12  ABSTRACTER. 

F.nd  Conrad  E— ,  a  subsequent  purchaser  who  is  ignorant  of 
the  fact  is  not  bound  to  inquire  about  it.^*^ 

§  13.  Constructive  notice  flowing  exclusively  from  matters 
of  record  can  never  be  construed  to  be  more  extensive  than  the 
facts  stated  in  the  record.  The  record  must  conclusively  create 
notice,  or  there  is  no  notice.  Under  the  recording  acts,  the 
record  of  a  judgment  is  notice,  and  not  prima  facie  notice,  of 
its  contents  and  of  the  charge  created  by  it,  to  all  persons  sub- 
sequently dealing  with  its  subject-matter."  In  matters  of  con- 
structive notice,  the  question  is  not  whether  the  abstracter  rep- 
resenting the  subsequent  dealer  with  the  land  had  the  means  of 
obtaining,  and  by  suspicion,  prudent  caution  or  inquiry,  might 
have  obtained  the  knowledge  in  question,  but  whether  by  not 
obtaining  it  he  was  guilty  of  gross  or  culpable  negligence.'** 
From  these  well  established  principles  it  inevitably  follows  that 
the  rule  that  what  is  sufficient  to  put  a  purchaser  or  his  agent 
on  inquiry  is  notice  of  whatever  the  inquiry  would  have  led  to, 
applies  to  actual,  but  not  to  constructive  notice.^"  In  order  to 
put  a  searcher  on  inquiry  dehors  the  record,  an  inference  arising 
from  the  record  must  be  necessary  and  unquestionable.^" 

§  14.  The  abbreviations  of  a  man's  given  name  are  so  com- 
mon that  without  any  violence  to  the  law  of  the  land,  the  courts 
may  take  judicial  notice  of  them.*^ 

§  15.  Middle  name,  middle  initial.  By  the  common  law  a 
full  name  consists  of  one  given  name  and  one  surname  or  pat- 
ronymic. The  two  constitute  the  legal  name  of  the  person. 
The  law  knows  but  one  given  name,  and  the  omission  or  inser- 
tion of  the  middle  name  or  the  initial  letter  of  that  name  is 
immaterial.  It  is  no  misnomer  to  improperly  include  or  ex- 
clude the  initial  of  a  middle  name;  it  is  unimportant  and  sug- 
gests nothing.*-     But  it  has  been  held  that  while  this  rule  ap- 

soGnindies  v.   Rcid,   107   111.   304  IMoore     v.     Davis,      58     Mich.     25 

(1883).  (1885).       Mcl.onth     v.     Hurt,     51 

37  Pomeroy  Eq.  Jur.  §§  G49,  654,  Texas,  115  (1879).  Johnson  v. 
655.  Hess,  supra, 

38  See  2  Su;?don  on  Vend.  &  4o  McMeehan  v.  Griffith,  3  Pick. 
Pureh.,  14th   Ed.  571,  572.  154    (18-25). 

39  Battenhausen  v.  Bullock,  11  4i  Fenton  v.  Perkins,  3  Mo.  144 
111.  App.   665    (1882).     Crundios  v.  (1832). 

Reid,   107   111.   304    (1883).     Lowry  <2Gainos   v.    Stiles,    14    Pet.    (U. 

y.    Smith,     97     Ind.    406     (1884).      S.)    322    (1840).     Franklin  v.  Tal- 


IDEM  SONANS.  13 

plies  to  contracts,  pleading,  evidence,  service  of  process  and 
criminal  proceedings,  it  does  not  relieve  a  plaintiff  from  the 
duty  of  designating  the  person  against  whom  he  has  obtained 
judgment,  by  using  his  middle  initial.*^ 

It  is  the  duty  of  the  abstracter  to  point  out  carefully  in  his 
certificate  the  names  with  middle  initials,  which  he  has  and  has 
not  searched.  While  the  word  Junior  or  its  abbreviation  *'Jr." 
is  merely  a  matter  of  description  and  is  no  part  of  a  person's 
legal  name,  it  is  the  duty  of  the  abstracter  in  proper  cases  to 
certify  to  his  principle  any  use  or  non-use  of  the  designation 
which  he  may  find  on  the  record  of  judgments. 

§  16.  Surnames,  idem  sonans.  It  is  with  surnames  that  the 
greatest  difficulty  arises.  Absolute  accuracy  in  spelling  names 
is  not  required  in  legal  documents  and  records.  Courts  are 
not  fastidious  in  enforcing  absolute  precision  in  orthography, 
and  in  the  pronunciation  of  proper  names  far  greater  latitude 
is  indulged  in  than  in  any  other  class  of  words.  The  name  of 
the  judgment  defendant  may  be  written  in  the  record  in  quite 
a  different  manner  from  that  in  which  he  writes  it,  but  in  the 
matter  of  names,  orthography  is  not  important  if  the  sound  is 
the  same.  If  a  name  when  pronounced  conveys  practically  the 
same  sound  as  another  name  when  pronounced ;  if  a  name  in- 

madge,  5  Johns.  84  (1809).    Rooae-  omission  of  it  is  to  be  disregarded 

velt     V.     Gardinier,     2     Cow.     463  as  an  index  of  notice  to  purchasers. 

(1824).      Milk   V.   Christie,    1    Hill  Persons  of  the  same  name  are   in- 

102    (1841).     Edmundson  v.  State,  dividuated    by    various    additions; 

17     Ala.     179      (1850).      State    v.  sometimes  by  title,  profession,  resi- 

Smith,   12   Ark.   622;    56   Am,   Dec.  dence    or    seniority;    sometimes    by 

287    (1852).     Morgan  v.  Woods,  33  numerals;    sometimes    by    color    of 

Ind.  23    (1870).      Schofield  v.   Jen-  complexion   or   hair;    sometimes  by 

nings,  68  Ind.  232   (1879).    Gross  v.  an    initial.      The    absence     of     the 

Village,  177  111.  248;  52  N.  E.  Rep.  badge    (middle  initial  M.),  in  this 

372  (1898).    Claflin  V.  Chicago,  178  instance    misled    a    purchaser    and 

111.  549;  53  N.  E.  Kep.  339   (1899).  though      the      judgment      is      good 

Allison  V.  Thomas,  72  Cal.  562;   14  against    the    defendant,    it    is    bad 

Pac.    Rep.    309     (1887).      See    au-  against   the  terre  tenant.     It   was 

thorities  cited  in  these  cases.  the   plaintiff's   business   to   see   his 

43  Wood  V.  Reynolds,  7  Watts  &  judgment  properly  entered;  and  he 

Serg.  406    (1844).     In  this  case  it  must   bear   the   loss   caused   by   his 

was   said:    "It    is    certain    that    an  negligence,  rather  than  one  who  is 

initial,    standing    with    a    name   of  in  no  default  whatever."     See  also 

baptism,  is  no  part  of  it  in  plead-  Hutchinson's  Appeal,  92  Pa.  St.  186 

ing,    but    it    follows    not    that    an  (1879). 


14  ABSTRACTER. 

correctly  spoiled  when  ordinarily  pronounced  sounds  like  the 
correct  name  as  commonly  pronounced,  it  is  idem  sonans. 
Whether  two  names  are  idem  sonans  is  a  question  of  pronun- 
ciation and  not  of  spelling;  it  depends  less  on  rule  than  on 
usage.  It  does  not  matter  how  names  are  spelled,  if  the  atten- 
tive ear  finds  difficulty  in  distinguishing  them  when  pro- 
nounced.'** It  is  an  old  and  well  established  rule  that  if  two 
names,  according  to  the  ordinary  rules  of  pronouncing  the 
English  language,  may  be  sounded  alike  without  doing  violence 
to  the  letters  found  in  the  variant  orthography,  the  names  are 
idem  sonans  and  the  variance  is  prima  facie  immaterial.  If  an 
abstracter  decides  that  two  names  are  idem  sonans  and  he 
searches  both,  his  search  against  both  must  be  complete,  and 
if  he  leaves  off  a  judgment  against  one  of  them,  he  is  liable  for 
any  loss  which  may  be  occasioned  thereby .^^ 

§  17.  Foreign  names.  The  searcher  is  not  required  to  know 
how  the  name  he  is  examining  may  be  spelled  according  to  the 
rules  applicable  to  foreign  languages,  for  the  records  must  be 
kept  in  the  English  language.  The  rule  of  idem  sonans  does 
not  apply  to  bind  third  persons  by  constructive  notice  of  public 
records  where  two  foreign  names,  pronounced  alike,  in  fact  be- 
gin with  a  different  letter  of  the  alphabet.  Although  Yoest 
and  Joest  are  pronounced  alike  in  German,  a  searcher  for  judg- 
ments against  Yoest  need  not  consult  indices  under  the  let- 
ter J." 

•*4  Myer    v.    Fegaly,    39    Pa.    St.  48  Heil    and    Lauer's    Appeal,    40 

429;     80    Am.     Dec.     534     (1861).  Pa.  St.  453    (1861).     For  alpliabet- 

Commonwealth      v.      Donovan,      95  ical  lists  of  words   held  to  be  and 

Mass.     571      (1866).       Robson     v.  not  to  be  idem  sonans,  see  16  Am. 

Thomas,  55  Mo.  581    (1874).     Peo-  &   Eng.   Enc.   of   Law,    122    and    21 

pie  V.   Pick,  89  Cal.   144;    26   Pac.  Am.  &  Eng.  Enc.  Law   (second  ed.) 

Eep.  759   (1891).  313. 

*■•  Commonwealth      v.      Owen,      2 
Wkly.  Notes  Cases,  200   (1875). 


CHAPTER  II. 

TO    WHOM    ABSTRACTER    IS   LIABLE. 

§  18.  An  abstracter  is  liable  only  to  his  employer.  An  ab- 
stracter is  liable  only  to  the  person  who  employed  him,  and  he 
is  not  liable  to  a  third  person  to  whom  his  employer  furnished 
the  abstract  for  the  purpose  of  procuring  money  or  property, 
or  with  whom  the  employer  had  some  business  in  which  the  ab- 
stract was  used.^  An  abstracter  is  not  bound  to  know  that  his 
certificate  is  for  the  use  and  reliance  of  anyone  except  his  em- 
ployer, and  it  cannot  be  assumed  that  he  gives  it  for  the  use  of 
any  other  person.  He  contracts  with  the  person  who  employs 
and  pays  him  that  he  will  give  a  certificate  which  shall  state  the 
facts,  but  he  enters  into  no  relation  of  contract  or  otherwise  in  re- 
spect to  it  with  any  other  person.  If  another  relies  on  it  to  his  in- 
jury, he  cannot  have  redress  on  the  abstracter,  for  the  reason  that 
the  latter  assumed  no  duty  for  his  protection.  To  constitute 
actionable  negligence  the  person  causing  the  injury  must  owe  a 
duty  to  the  person  sustaining  the  loss.-  In  discussing  this  rule 
it  was  said:  "It  is  not  every  one  who  suffers  a  loss  from  the 
negligence  of  another  that  can  maintain  a  suit  on  such  ground. 
The  limit  of  the  doctrine  relating  to  actionable  negligence  is, 
that  the  person  occasioning  the  loss  must  owe  a  duty  arising 

1  Equitable  Assn.   v.   Bank,  45  N.  W.  Rep.  539    (1890).     Com- 

Tenn.  ;    102    S.    W.    Rep.    901  monwealth  v.   Harmer,  6   Phila.   90 

(1907).     Dundee   Mortgage    Co.    v.  (1865).     Symns  v.   Cutter,   9   Kan. 

Hughes,  20  Fed.  Rep.  39;    10  Saw-  App.  210;  59  Pac.  Rep.  671   (1900). 

yer    145     (1884).      Schade   v.    Geh-  Wood     v.     Ruland,      10     Mo.      143 

ner,   133   Mo.   252;    34   S.   W.   Rep.  (1846). 

576      (1895).       Savings     Bank     v.  2  Day  v.   Reynolds,   23   Hun     131 

Ward,     100     U.     S.     195      (1879).  (1880).     Commonwealth  v.  Harmer, 

Zweigardt  v.  Birdseye,  57  Mo.  App.  6  Phila.  R.  90    (1805).     Houseman 

462    (1894).     Mallory  v.  Ferguson,  v.    Girard   Mutual,   81    Pa.   St.   256 

50   Kan.    685;    32    Pac.    Rep.    410;  (1876).     National  Savings  Bank  v. 

22   L.    R.   A.    99    (1893).      Morano  Ward,  100  U.  S.  195    (1879).     Fish 

V.  Shaw,  23  La.   Ann.   379    (1871).  v.    Kelly,    17    C.    B.     (n.    s.)     194 

Thomas    v.    Schee,    80    Iowa,    237;  (1864). 

15 


IG  ABSTRACTER. 

from  contract  or  otherwise  to  the  person  sustaining  such  loss. 
Such  a  restriction  on  the  right  to  sue  for  want  of  care  in  the 
exercise  of  emplojinents  or  the  transaction  of  business  is  plainly- 
necessary  to  restrain  the  remedy  from  being  pushed  to  an  im- 
practicable extreme.  There  v.-ould  be  no  bounds  to  actions  and 
litigious  intricacies  if  the  ill  effects  of  the  negligences  of  men 
could  be  followed  down  the  chain  of  results  to  the  final  effect."  ^ 
"The  onlj'  safe  rule  is  to  contine  the  right  to  recover  to  those 
who  enter  into  the  contract ;  if  we  go  one  step  beyond,  that,  there 
is  no  reason  why  we  should  not  go  fifty."  * 

§  19.  Applications  of  the  rule.  An  abstracter  furnished  an 
abstract  to  the  husband  of  a  certain  woman.  He  delivered  it 
to  a  building  association  to  procure  a  loan  on  the  property.  The 
attorney  of  the  association  found  that  the  title  was  in  the  wife, 
and,  relying  on  the  statements  in  the  abstract,  the  association 
made  a  loan  to  her.  The  abstracter  had  no  knowledge  of  the 
purpose  for  which  the  husband  intended  to  use  the  abstract, 
and  it  contained  an  error  which  covered  up  a  defective  title. 
It  was  held  that  there  was  no  privity  between  the  association 
and  the  abstracter,  and  that  it  could  not  maintain  an  action 
against  him  for  a  loss  suffered  by  it  through  the  defective  title.^ 
An  abstracter  who  prepares  an  abstract  for  the  purpose  of 
having  it  submitted  to  a  loan  broker  is  not  liable  to  one  who 
purchases  the  loan  from  the  broker,  takes  the  loan  in  reliance 
on  the  title  as  shown  by  the  abstract,  and  sustains  a  loss  by 
reason  of  defects  in  it.*'  Where  an  abstract  was  ordered  by  one 
who  purposed  to  loan  money  on  the  property,  the  abstracter  is 
liable  to  him  for  failure  to  present  a  correct  abstract,  although 
the  expense  was  paid  by  the  borrower.'^  A  contract  relation 
exists  between  the  owner  of  a  piece  of  land  and  an  abstracter 
employed  to  make  an  abstract  of  title  to  it,  though  the  employ- 
ment was  made  by  an  agent  of  the  owner,  who  did  not  disclose 

sKahl   V.    Love,   37    N.    J.    L.    5  Rep.     206      (1895).       See     Dundee 

(1874).  Mortgage    Co.    v.    Hughes,    20    Fed. 

*  Wintorlottom     v.     Wright,     10  Rep.     39      (1884).       Houseman     v. 

Mecs.  &  W.  109.  Girard     Assn.,     81      Pa.     St.     256 

5  Kquitable   Association    v.    Bank,  (187G). 

Tenn.          ;   102  S.  W.  Rep.  901  7  Page    v.    Trutcli,    18    Fed.    Cas. 

(1907).  995;    3    Cent.    L.    J.    559     (1876), 

oTalpey  v.  Wright,  61  Ark.  275;  See  §  49. 
32   S.   W.    Rep.    1072;    54  Am.   St. 


PRIVITY  OF  CONTRACT.  17 

his  principal.^  The  administrator  of  the  deceased  employer 
may  sue  for  a  breach  of  the  contract  on  the  part  of  the  ab- 
stracter to  use  ordinary  care  and  skill  in  the  preparation  of  the 
abstract.®  But  an  abstracter  is  not  liable  to  the  widow  of  his 
employer,  who  is  a  devisee  of  the  land.^° 

§  20.  Effect  of  statutory  bond.  Where  the  statute  requires 
an  abstracter  to  give  bond  for  the  payment  "of  any  and  all 
damages  that  may  accrue  to  any  party  or  parties  by  reason  of 
any  error,  deficiency  or  mistake  in  any  abstract  or  certificate 
made  and  issued"  by  him,  he  is  liable  on  his  bond  to  third  per- 
sons for  injuries  suffered  by  them  through  his  negligence  or 
want  of  skill. ^^ 

§  21.  liability  to  third  persons  nnder  privity  of  contract 
There  may  be  special  circumstances  under  which  an  abstracter 
will  be  held  to  have  placed  himself  in  such  relation  to  a  third 
person  that  he  will  owe  him  protection,  although  there  is  no 
contract  between  them.  The  fact  that  the  abstracter  knows 
that  the  abstract  prepared  by  him  is  to  be  used  in  the  negotia- 
tion of  a  sale  of,  or  mortgage  on  the  property  described  in  it,  to 
advise  the  purchaser  or  lender  as  to  the  condition  of  the  title, 
does  not  affect  the  rule  that  he  is  liable  to  his  employer  only. 
There  must  be  something  more  than  a  mere  knowledge  of  such 
facts,  something  which  brings  the  abstracter  and  the  purchaser 
or  lender  into  relations  of  privity.  They  must  have  some  con- 
nection in  the  transaction, — some  mutual  interest  in  it,  which  is 
recognized  by  some  act  of  the  abstracter,  and  which  brings 
about  some  relation  other  than  that  of  actual  contract  between 
them.  This  relation  is  called  privity  of  contract.^-  There  must 
be  a  republication,  a  renewal  or  a  delivery  of  the  abstract  by 
the  abstracter  to  the  third  person,  in  order  to  make  the  latter 
privy  to  the  contract  and  to  entitle  him  to  sue  on  it. 

§  22.     Examples  of  privity  of  contract.     Where  one  about  to 

8  Young  V.  Lohr,   118  Iowa    624;  lo  Schade  v.  Gehner,  133  Mo.  252; 

92   N.    W.    Rep.    684    (1902).      See  34  S.  W.  Hep.  576    (1896). 

Denton  V.  Title  Co.,  112  Tenn.  320;  "Gate    City    Abs.    Co.    v.    Post, 

79  S.  W.  Rep.  799    (1903).  55   Neb.   742;    76   N.   W.    Rep.    899 

0  Security  Abstract   Co.   v.   Long-  (1898).     See  Allen  v.   Hopkins,   62 

acre,  56   Neb.  469;   76   N,   W.   Rep.  Kan.  175;  61  Pac.  Rep.  750   (1900). 

1075    (1S98).      Knight   v.    Quarles,  12  Zweigardt  v.   Birdseye,  57   Mo. 

4    Moore      532;     2    B.     &    B.     102  App.  462    (1894). 
(1820). 


18  ABSTRACTER. 

borrow  money  procured  a  certilieate  of  search  and  paid  for  it, 
and  the  lender,  not  feeling  satisfied  with  its  correctness,  took 
it  to  the  abstracter,  who  examined  it,  made  another  search,  said 
it  was  correct  and  handed  it  back  to  him,  and  the  lender  paid 
out  the  money  on  the  loan  and  lost  because  the  certificate  was 
wrong,  it  was  held  that  the  republication  of  the  certificate,  the 
renewal  and  delivery  to  the  lender  made  a  privity  of  contract 
and  that  the  abstracter  was  liable  to  the  lender.^^  Where  the 
abstracter  knew  that  an  abstract  was  ordered  by  the  owner  of 
the  property  for  the  purpose  of  procuring  a  loan  from  a  cer- 
tain mortgage  company  and  for  the  exclusive  use  and  benefit 
of  that  company,  and  knew  that  the  company  would  rely  on 
the  abstract  in  examining  the  title  to  the  property,  and  de- 
livered the  abstract  when  it  was  completed  to  an  agent  of  the 
company,  it  was  held  that  there  was  privity  of  contract  between 
the  abstracter  and  the  company,  and  that  there  could  be  no 
doubt  as  to  his  liability  to  the  company  for  injuries  sustained 
by  reason  of  the  failure  of  the  abstract  to  disclose  an  unsatis- 
fied judgment  which  was  a  lien  on  the  property.^*  An  ab- 
stracter, who  at  the  request  of  the  owner  of  lands  furnishes  an 
abstract  of  title  to  a  third  person,  knowing  that  the  latter  will 
use  it  in  determining  whether  the  title  is  safe  for  the  purposes 
of  a  loan  and  that  in  making  the  loan  he  will  rely  entirely  on 
the  correctness  of  the  abstract,  and  who  certifies  that  it  is  a  true 
and  correct  search  of  the  records  and  represents  to  such  third 
person  on  incpiiry  by  him  that  there  are  no  defects  in  the  title, 
is  liable  for  loss  sustained  by  the  latter  through  defects  in  the 
title  not  disclosed  by  the  abstract.^^ 

13  Sievers    v.    Commonwealth,    87  dom  incurs  the  expense  of  procnr- 

Pa.   St.    15    (1878).  ing   an    abstract    of    title    from    an 

!■*  Western  Loan  &  Sav.  Co.  v.  abstracter  except  for  the  purpose 
Abstract  Company,  31  !Mont.  448;  of  thereby  furnisliiiig  information 
78  Pac.  Rep.  774;  107  Am.  St.  Rep.  to  some  third  person  or  persons 
435  (1904).  See  to  the  same  ef-  who  are  to  be  influenced  bj'  the  in- 
fect, Economy  Buihling  Assn.  v.  formation  thus  provided.  If  the  ab- 
West  Jersey  Title  Co.,  64  N.  J.  L.  stracter  in  all  cases  be  responsible 
27;  44  Atl.  Rep.  .854    (1899).  only  to  the  person  under  whose  em- 

i''  Hrown   v.    Sims,   22    Ind.   App.  ploynient   he   performs   the   service, 

247;    53    N.   E.    Rop.    779;    72   Am.  it   is   manifest   that   the   loss   occa- 

St.   Rep.  308    (1890).     In  this  case  sioncd  thereby  must  in  many  cares, 

it  was  said:     "It  is  very  well  known  if  not  in  most  cases,  be  remediless. 

that  tlje  owner  of   rea^  eatate  sel-  Where  the  abstracter  has  no  kuowl- 


PlllVlTY  OF  CONTRACT. 


19 


§  23.  Where  the  owner  of  a  tract  of  land  and  the  intending 
purchaser  agreed  that  the  owner  shouki  order  the  abstract  of 
title  and  that  the  cost  should  be  equally  divided  between  them, 
and  the  abstracter  knew  when  it  was  ordered  that  it  was  to  be 
used  as  evidence  of  title  in  making  a  sale  of  the  land  to  the  pur- 
chaser, and  after  the  sale  the  purchaser  suffered  damage  through 
a  defect  in  the  abstract  on  which  he  had  relied,  it  was  held  that 
there  was  privity  of  contract  between  the  purchaser  and  the 
abstracter  and  that  the  abstracter  was  liable  to  the  purchaser 
for  the  injury.^"  Where  an  abstracter  is  employed  by  the  owner 
of  a  tract  of  land  to  make  an  abstract  of  title  to  it,  and  is  also 


edge  that  some  person  other  than 
his  employer  will  rely  in  a  pecu- 
niary transaction  upon  the  correct- 
ness of  the  abstract,  the  general 
rule  that  his  duty  extends  only  to 
his  employer  must  be  maintained. 
How  far  exceptions  ought  to  be 
countenanced  we  will  not  now  un- 
dertake to  say,  but,  confining  our- 
selves to  the  case  before  us,  we  are 
of  the  opinion  that  the  facts  stated 
in  the  complaint  are  sufficient  to 
put  the  defendant  to  his  answer. 
Here  there  was  actual  communica- 
tion between  the  abstracter  and  the 
person  for  whose  information  the 
abstract  was  prepared.  The  appel- 
lant (lender)  had  refused  to  make 
the  loan  until  he  should  be  fur- 
nished with  an  abstract,  and  the 
abstracter  was  informed  that  his  ab- 
stract was  to  be  used  for  the  par- 
ticular purpose  of  inducing  the 
plaintiff  (the  lender)  to  make  a 
loan  secured  by  mortgage  on  this 
real  estate.  He  delivered  the  ab- 
stract to  the  appellant  for  his  use 
and  certified  it  to  be  a  correct  and 
true  abstract  of  title;  and  he  rep- 
resented to  the  appellant,  before  he 
made  the  loan,  that  the  title  was 
free  and  unincumbered,  and  that 
there  were  no  liens  on  the  real  es- 
tate;   and   the    appellant   informed 


the  abstracter  that  he  would  rely 
entirely  on  the  abstract  and  his 
representation;  and  the  abstracter 
informed  the  appellant,  before  he 
made  the  loan,  that  he  could  so 
rely;  and  the  appellant  did  so  rely 
in  making  the  loan,  having  no  other 
knowledge  or  information.  We 
think  it  cannot  properly  be  said  ap- 
pellee (the  abstracter)  did  not  owe 
a  duty  to  the  appellant  arising  un- 
der the  contract,  the  attending  cir- 
cumstances indicating  that  it  was 
the  understanding  of  all  the  parties 
that  the  service  was  to  be  rendered 
for  the  use  and  benefit  of  the  ap- 
pellant, the  particular  person  who 
was  to  loan  his  money  in  reliance 
upon  what  the  abstracter  should  do 
and  represent  in  the  premises.  If 
such  a  duty  did  arise  the  appellee 
was  bound  to  the  person  to  whom 
he  owed  the  duty  to  perform  it  with 
reasonable  care  and  skill.  However 
broad  and  inclusive  the  statements 
of  the  general  doctrine  in  the  de- 
cided cases,  we  think  that  when  the 
facts  involved  and  the  reasons  stat- 
ed in  the  opinions  are  considered, 
it  must  be  concluded  that  the  view 
we  take  of  the  pleading  before  us 
is  sustained  by  the  autliorities." 

iG  Denton  v.  Title  Co.,   112  Tenn. 
320;  79  S.  W.  Rep.  799   (1903). 


20  ABSTRACTER. 

employed  to  prepare  a  deed  from  the  owner  to  the  purchaser, 
it  must  be  held  that  there  is  a  republication  of  the  abstract  to 
the  purchaser  and  that  he  is  entitled  to  recover  for  any  defects 
in  the  abstract  through  which  he  has  suffered  injury.^'^ 

According  to  this  case,  where  a  mortgage  is  left  with  an  ab- 
stracter with  instructions  to  have  it  recorded  and  to  bring  down 
the  abstract  of  title  to  the  land  to  cover  the  record  of  the  mort- 
gage, there  is  doubtless  privity  of  contract  between  the  ab- 
stracter and  the  mortgagee,  which  will  entitle  the  latter  to  re- 
cover for  any  injury  he  may  suffer  by  reason  of  a  defect  or 
omission  in  the  abstract.  Where  an  association,  proposing  to 
make  a  loan  on  certain  property,  permitted  the  borrower  to 
order  the  abstract,  and  the  borrower,  explaining  the  proposed 
loan,  persuaded  the  abstracter  to  omit  from  the  search  all  ref- 
erence to  a  mortgage  then  on  the  property,  on  the  assurance 
that  it  should  be  paid  and  satisfied  out  of  the  proceeds  of  the 
loan  from  the  association,  but  the  mortgage  was  not  so  satisfied, 
and  on  the  foreclosure  of  it  the  association  lost  a  part  of  its 
loan,  it  was  held  that  the  abstracter  was  liable  to  it  for  the 
amount  of  its  loss.^^ 

§  24.  Cominents  on.  some  cases.  It  is  sometimes  said  in 
opinions  that  the  weight  of  authority  is  to  the  effect  that  an 
abstracter  is  liable  only  to  his  employer  and  not  to  third  persons, 
and  this  expression  may  possibly  convey  the  idea  that  there  are 
some  authorities  holding  that  an  abstracter  is  liable  to  a  stranger 
to  the  contract.  There  are  cases  holding  that  privity  of  con- 
tract exists  between  the  abstracters  and  third  persons  under 
the  special  circumstances  in  the  cases  and  that  republication, 
renewal  or  delivery  of  the  abstract  by  the  maker  to  the  third 
person  creates  a  privity  of  contract  which  takes  the  case  out  of 
the  general  rule.  As  we  have  seen,  these  cases  recognize  the 
exception,  but  there  is  no  case  which  repudiates  the  rule.  In 
a  celebrated  book  of  reference  it  is  said:  "The  general  doctrine 
is  that  the  liability  extends  only  to  the  person  for  whom  the  ab- 
stract is  made ;  but  there  are  well  considered  cases  holding  that 
where  a  person  makes  an  abstract  for  one  party  to  a  trans- 

"  Dickie  V.  Abstract  Company,  89  Pa.    St.    261 ;     33    Am.    Rpp.    757 

Tonn.  431;    14   S.   W.   Rop.  800;   24  (1870).    Houseman  v.  Girard  Assn., 

Am.   St.  Rep.  616    (1890).  81  Ta.  St.  256    (1876). 

18  Peabody  Assn.  v.  Houseman,  89 


PRIVITY  OF  CONTRACT.  21 

action,  which  he  knows  will  be  used  and  which  in  fact  is  used 
to  influence  the  action  of  the  other  party  thereto,  he  is  liable  to 
such  other  party. ' '  ^°  The  authority  cited  for  the  last  statement 
is  Dickie  v.  Abstract  Co..  supra,  and  the  argument  in  the  opinion 
in  that  case  is  broad  enough  to  sustain  the  doctrine  as  stated. 
But  the  controlling  feature  in  that  case  was  that  the  deed  to  the 
purchasers  was  prepared  by  the  abstracter,  and  the  decision  in 
the  case  was,  not  that  the  abstracter  was  liable  to  third  persons, 
but  that  "the  allegations  of  the  bill  clearly  made  a  privity  of 
contract  between  the  purchasers  and  the  defendant."  Whether 
so  slight  a  circumstance  as  the  preparation  of  the  deed  was 
enough  to  make  a  privity  of  contract  between  the  purchasers 
and  the  abstracter  was  a  matter  for  judicial  decision,  but  the 
opinion  in  the  case  does  not  treat  in  a  definite  and  satisfactory 
manner  the  principles  involved.^"  In  Denton  v.  Title  Co., 
supra,  the  Dickie  case  was  followed  and  again  great  stress  was 
laid  in  the  opinion  on  the  facts  that  the  abstracter  knew  that 
the  abstract  was  to  be  used  in  a  sale  and  that  the  purchaser  re- 
lied on  the  correctness  of  it.  There  is  in  the  opinion  no  inti- 
mation that  the  purchaser  under  the  circumstances  was  an  un- 
disclosed principal  for  whom  the  vendor  acted  when  he  ordered 
the  abstract  for  joint  account  of  both  parties,  and  the  opinion 
does  not  fairly  meet  any  of  the  difficulties  in  the  case.  But  in 
a  later  ease  ^^  the  same  court  broadly  announced  the  doctrine 
that  an  abstracter  is  not  liable  to  third  persons  unless  there  has 
been  a  republication  of  the  abstract  to  them,  and  it  placed  the 
Dickie  and  Denton  cases  among  those  holding  that  privity  of 
contract  existed  under  the  special  circumstances. 

§  25.  Comments  on  the  rule.  It  is  a  sound  legal  principle 
which  requires  that  the  person  causing  an  injury  must  owe  a 
duty  to  the  person  sustaining  loss,  in  order  to  constitute  action- 
able negligence,  but  if  any  class  of  persons  is  to  be  excepted 
from  it,  abstracters  of  title  should  be.     Few  persons  order  ab- 

19  1  Am.  &  Eng.  End.  Law,  2nd  erty  without  an  abstract  and  rely 
Ed.,  p.  221.  on   it   after   it  is   furnished   by  the 

20  This  case  is  criticised  in  a  note      vendor. 

in   24   Am.    St.   Rep.   617,   where   it  21  Equitable   Assn.    v.    Bank, 

is    assumed    to    hold    that    an    ab-  Tenn.           ;     102    S.    W.    Rep.    901 

stracter    is    liable    to   third    persons  (1907). 
who   refuse   to   purchase   the    prop- 


22  ABSTRACTER. 

straets,  or  continuations  of  them,  in  order  to  be  assured  that 
nothing  adverse  or  unknown  to  them  appears  of  record  against 
their  titles.  It  may  be  broadly  stated  that  abstracts  are  ordered 
and  paid  for  by  owners  of  land  in  anticipation  of  some  dealing 
with  the  title,  and  that  the  abstracter  knows  in  a  general  way 
that  someone,  relying  on  the  correctness  of  his  work,  probably 
will  part  with  something  of  value  in  dealing  with  it.  It  is 
therefore  just  and  equitable  that  he  should  be  called  on  to 
answer  to  anyone  who  may  be  injured  for  want  of  care  and 
skill  on  his  part.  It  does  not  follow,  however,  that  courts  should 
make  abstracters  of  title  an  exception  to  the  rule.  They  may 
look  closely  into  the  record  of  a  case  to  discover  whether  any 
act  of  the  abstracter  has  brought  him  into  privity  of  contract 
with  the  person  injured,  but  it  is  a  question  of  policy  for  the 
legislature  and  not  for  the  courts  to  determine  whether  abstrac- 
ters should  be  an  exception  to  this  principle.  The  legislatures 
of  some  states  have  made  them  such.-- 

It  is  to  be  noted,  however,  that  many  abstracters  have  not 
waited  for  the  legislatures  to  extend  their  liabilities  to  third 
persons,  but  have  held  themselves  out  as  liable  to  any  injured 
person  who  dealt  with  the  title  and  relied  on  the  correctness  of 
their  work.-" 

§  26.  Liability  under  special  contract.  Where  an  abstracter 
certified,  guaranteed  and  warranted  to  his  employer,  his  "heirs, 
devisees  and  grantees"  that  the  abstract  contained  a  full,  true 
and  complete  search  of  the  records,  when  in  fact  there  was  an 
error  in  it  through  which  a  grantee  under  a  mesne  conveyance 
from  the  grantee  of  the  employer  suffered  injury,  it  was  held 
that  such  remote  grantee  was  not  entitled  to  maintain  an  action 
for  damages  for  a  breach  of  the  guaranty.  The  court  said: 
"The  plaintiff  certainly  was  not  a  party  to  the  contract;  neither 
was  she  privy  thereto  *  *  *  The  plaintiff  is  not  the  im- 
mediate grantee  of  (the  employer),  but  she  derived  her  title 
through  a  mesne  conveyance ;  and  if  she  is  entitled  to  claim  any 
benefit  from  defendant's  contract,  why  is  not  her  grantee,  and 
any  subsequent  grantee,  however  remote?"^* 

22  See  Gate  City  Abs.  Co.  v.  Post,  the  abstract  companies  of  Chicago 
65   Neb.    742;    70   N.    W.    Rep.   899       for  many  years  past. 

(1S9.S).     Allen  V.  Hopkins.  02  Kan.  2*  Olawatz      v.      People's      Guar. 

175;   01   Pac.  Rop.  750    (1900).  Search    Co.,    63    N.    Y.    Supp.    091; 

23  This  position  has  been  taken  by       49  App.  Div.  4G5    (1900). 


CHAPTER  III. 

SUITS  AGAINST  AN  ABSTRACTER. 

§  27.  Ereach  of  duty,  pleading.  As  the  undertaking  of  an 
abstracter  is  that  he  will  furnish  a  full,  complete  and  correct 
statement  of  the  condition  of  the  records  as  affecting  the  title 
to  certain  land,  a  breach  of  his  duty  is  a  violation  of  his  con- 
tract, and  an  action  against  him  for  such  breach  is  in  contract 
and  not  in  tort.  The  allegation  of  carelessness  and  negligence 
in  doing  his  duty  does  not  change  the  action  from  one  on  con- 
tract to  one  in  tort,  but  refers  merely  to  the  manner  in  which 
the  breach  of  duty  was  committed.^  The  gravamen  of  an  action 
against  an  abstracter  for  failure  properly  to  disclose  the  state 
of  the  records  is  non-feasance  and  not  misfeasance,  which  marks 
the  distinction  between  negligence  and  fraud.  The  allegation 
in  describing  his  dereliction  of  duty  should  be  ''carelessly  and 
negligently"  and  not  "falsely  and  fraudulently."^  A  plain- 
tiff may  aver  that  he  was  injured  by  the  wrongful  acts  of  the 
defendant,  but  if  the  specific  facts  averred  show  that  there  could 
have  been  no  damages,  he  can  recover  none,  for,  in  pleading, 
specific  averments  always  control  general  allegations.  An  aver- 
ment that  plaintiff  was  compelled  to  pay  out  money  to  protect 
his  title  and  to  litigate  the  question  of  priority  of  liens  is  a  legal 
conclusion,  and  in  order  to  be  effective  it  must  be  sustained  by 
specific  averments  of  facts,  showing  that  there  was  a  legal  com- 
pulsion in  the  payment  and  substantial  damages  as  the  result 
of  the  failure  of  the  abstracter  to  perform  his  duty.  Where  the 
plaintiff  averred  that  he  was  about  to  purchase  a  tract  of  land 
and  ordered  an  abstract  of  title  to  it,  that  the  abstract  was 
erroneous  in  that  it  failed  to  set  out  a  mortgage,  that  he  relied 

1  Russell     V.     Abstract     Co.,     87  Ictte,    95    Cal.    317;    30    Pae.    Rep. 

Iowa    233;   54  N.  W.  Rep.  212;   43  545;   29  Am.  St.  Rep.  115    (1892). 
Am.  St.  Rep.  381    (1893).     Thomas  2  Smith  v.  Holmes,  54  Mich.  104; 

V.  Schee,   80   Iowa    237;   45   N.   W.  19  N.  W.  Rep.  767    (1884). 
Rep.    539    (1890);    Lattin    v.    Gil- 

23 


24  ABSTRACTER. 

on  the  abstract  and  that  he  was  compelled  to  take  up  the  mort- 
gage, but  he  did  not  aver  that  he  had  purchased  the  laud,  it  was 
held  that  the  complaint  did  not  state  a  cause  of  action  against 
tlie  abstracter.^  Where  one  has  the  superior  lien  on  land  he 
must  show  by  proper  averments  how  he  was  injured  by  an  omis- 
sion in  the  abstract,  which  compelled  him  to  take  up  an  in- 
ferior lien.*  In  a  suit  against  an  abstracter  an  allegation  that 
plaintiff  hired  the  abstracter  to  furnish  a  full  and  complete 
abstract  is  sufficient  without  an  allegation  that  it  was  to  be 
made  from  any  particular  date.  An  allegation  that  plaintiff  by 
due  course  of  law  was  vested  and  dispossessed  of  the  land  which 
he  bought  relying  on  the  abstract  states  facts  and  not  a  con- 
clusion of  law.  An  allegation  that  the  abstracter  furnished  an 
abstract  showing  that  H.  was  the  owner  of  the  land  "without 
any  incumbrances"  sufficiently  states  that  the  abstract  showed 
that  there  were  no  incumbrances.^  The  complaint  against  an 
abstracter  for  negligently  furnishing  a  defective  abstract,  by 
reason  of  which  plaintiff  lost  the  property  bought  by  him,  need 
not  show  that  plaintiff  has  exhausted  his  remedy  against  his 
grantor,  or  that  his  grantor  is  insolvent.  Such  matters  con- 
stitute an  affirmative  defence." 

§  28.  Plaintiff  must  aver  and  show  that  he  relied  on  abstract. 
In  a  suit  for  breach  of  the  contract  on  the  part  of  the  abstracter 
to  use  due  diligence  and  skill  in  the  performance  of  his  duty,  it 
must  be  alleged  and  proved  that  the  plaintiff  relied  on  the  ab- 
stract and  was  injured  by  so  doing."^  Plaintiff  cannot  recover 
for  a  breach  of  the  contract  to  use  ordinary  care  and  skill  in  the 
preparation  of  the  abstract  where  it  appeared  that  the  abstract 
failed  to  disclose  the  delinciuent  and  current  taxes,   but  that 

3  Batty  V.  Font,  54  Ind.  482  76  N.  W.  Rep.  471  (1898).  Mo- 
(1876).  See  Puckett  v.  Abstract  range  v.  Mix,  44  N.  Y.  315  (1871). 
Co.,  16  Texas  Civ.  App.  329;  40  7  Young  v.  Lohr,  118  Iowa  624; 
S.   W.  Rep.  812    (1897).  92    N.    W.    Rep.    684    (1902).      See 

4  Williams  v.  Hanlcy,  10  Ind.  Smith  v.  Holmes,  54  INIich.  104; 
App.  4G4;  45  N.  E.  Rep.  022  19  N.  W.  Rep.  767  (1884).  Trim- 
(1896).  Ide    V.    Stewart,    35    Mo.    Apn.    537 

5  Hirshiser  V.  Ward,  Nev.  ;  (1889).  Symns  v.  Cutter,  9  Kan. 
87  Pac.  Rep.  171    (1900).  App.  210;  59  Pac.  Rep.  071   (1900). 

oHirshiser  V.  Ward,        Nev.         ;       llirshiser    v.    Ward,  Nev.  ; 

87    Pac.    Rep.    171     (1906).      Gate      87  Pac.  Rep.  171    (1906). 
City  Abs.  Co.  v.  Post,  55  Neb.  742; 


ACTION  FOR  DA:MAGES.  25 

plaintiff  did  not  examine  the  abstract  and  relied  on  the  verbal 
statement  of  the  abstracter  that  the  title  was  good  and  that  all 
taxes  had  been  paid.  Plaintiff  may  not  plead  one  cause  of  action 
and  recover  on  another.®  There  may  be  no  recovery  against  an 
abstracter  for  failure  to  show  in  the  abstract  a  judgment  lien  on 
the  property,  where  at  the  time  the  search  was  made  the  em- 
ployer had  bought  and  paid  for  the  property  and  he  advanced 
no  money  on  the  faith  of  the  search.^ 

§  29.  Defence  to  action  for  breach  of  duty.  .  In  an  action  for 
damages  against  an  abstracter  for  failure  to  disclose  a  judg- 
ment against  the  property,  which  judgment  the  plaintiff  had 
voluntarily  paid,  it  is  competent  for  defendant  to  show  that 
the  judgment  defendant,  at  the  time  it  was  paid  by  plaintiff, 
had  other  unincumbered  real  estate  in  the  county,  subject  to 
execution  and  sufficient  to  pay  the  debt.^° 

§  30.  Generally  concerning  actions  against  abstracter.  A 
judgment  sustaining  a  demurrer  to  a  complaint  against  an 
abstracter  will  not  be  reversed  where  the  complaint  shows  that 
plaintiff  is  at  most  entitled  to  only  nominal  damages.^^  In 
an  action  against  an  abstracter  for  failure  to  note  a  tax  sale, 
plaintiff  need  not  prove  that  there  was  a  record  of  the  sale. 
The  law  will  presume  that  the  proper  officer  did  his  duty  and 
made  the  record  at  the  proper  time  and  place.^^  The  fact  that 
one  giving  an  order  for  an  abstract  designates  a  certain  assistant 
in  the  office  as  the  person  whom  he  wishes  to  do  the  work  does 

8  Trimble  v.  Stewart,  supra.  Puckett  v.   Abstract   Co.,   16   Texas 

©Roberts  v.  Sterling,  4  Mo.  App.  Civ,  App.  329;   40  S.  W.  Rep.   812 

593   (1879).  (1897).      Russell    v.   Abstract    Co., 

10  Roberts  v.  Sterling,  supra.  87  Iowa    233;   54  N.  W.  Rep.  212; 

11  Williams  v.  Hanley,  supra.  43  Am.  St.  Rep.  381  (1893). 
Cases  decided  on  demurrer.  Brown  Economy  Assn.  v.  Title  Co.,  64  N. 
V.  Sims,  22  Ind.  247;  53  N.  E.  Rep.  J.  L.  27;  44  Atl.  Rep.  854  (1899). 
779;  72  Am.  St.  Rep.  308  (1899).  Dickie  v.  Abstract  Co.,  89  Tenn. 
Batty  V.  Fout,  54  Ind.  482  (1876).  431;  14  S.  W.  Rep.  896;  24  Am. 
U.  S.  Co,  V.  Linville,  43  Kan.  455;  St.  Rep,  616  (1890),  Wood  v.  Ru- 
23  Pac.  Rep.  597  (1890).  Wil-  land,  10  Mo.  143  (1846).  Hir- 
liams  V.  Hanley,  16  Ind.  App.  464;  shiser  v.  Ward,  Nev.  ;  87 
45  N.  E.  Rep.  622  (1890).  Lat-  Pac.  Rep,  171  (1906).  See  Smith 
tin  V.  Gillette,  95  Cal,  317;  30  Pac.  v.  Holmes,  54  Mich,  104;  19  N.  W. 
Rep.    545;    29    Am.    St.    Rep,    115  Rep.  767    (1884). 

(1892).     Symns  v.   Cutter,   9  Kan,  i- Chase   v.   Heaney,    70    111.    268 

App,  210;  59  Pac.  Rep,  671   (1900),        (1873). 


26  ABSTRACTER. 

not  make  the  assistant  his  agent  and  thereby  absolve  the  ab- 
stracter from  liability  for  an  erroneous  abstract.  Such  a  des- 
ignation is  a  mere  request  and  not  an  employment.  The 
abstracter  is  not  obliged  to  accede  to  the  request  and  if  he  does 
so  it  is  merely  a  matter  of  accommodation.^^  The  liability  of 
a  deceased  abstracter  for  negligence  in  preparing  an  abstract 
survives  against  his  personal  representative.^*  Where  an  em- 
ployer sustained  a  loss  through  a  defective  abstract,  and  after- 
ward died,  it  was  held  that  his  personal  representative  might 
maintain  an  action  against  the  abstracter.^^ 

§  31.  When  remedy  is  in  tort.  Where  one  has  been  injured 
by  a  conspiracy  between  au  abstracter  and  others  whereby  the 
abstracter  limited  his  certificate  to  searches  in  certain  offices, 
well  knowing  that  in  another  office  there  were  records  of  liens 
on  the  land,  with  intent  to  deceive  and  injure  any  person  who 
might  subsequently  deal  with  the  land,  the  remedy  is  in  tort 
and  not  in  contract.  Where  the  entries  on  the  abstract  are  in 
all  respects,  true,  according  to  the  terms  of  the  certificate,  and 
the  abstract  and  certificate  are  satisfactory  to  the  person  who 
ordered  them,  there  is  no  breach  of  contract.  The  conspiracy 
to  defraud  by  leaving  off  instruments  not  covered  by  the  cer- 
tificate is  the  basis  of  the  action.^'' 

§  32.  No  loss,  no  recovery.  An  abstracter  is  not  liable  for 
a  defect  in  the  abstract,  which  does  not  cause  an  injury;  there 
can  be  no  recovery  where  no  loss  is  shown.  It  is  necessary 
that  there  be  actual  damages  as  the  direct  consequence  of  the 
failure  of  the  abstracter  to  perform  his  duty.  The  loss,  in 
order  to  be  charged  to  him,  must  result  from  the  non-feasance 
of  the  abstracter.^^     Where  at  the  time  the  search  was  ordered 

13  Van  Schaick  v.  Sigel,  58  How.  le  Thomas  v.  Carson,  46  Neb.  7G5; 

Pr.  211;  60  How.  Pr.  122    (1880).  65  N.  W.  Rep.  899    (1890). 

"Allen  V.   Clark,   7   L.   T.   N.   S.  it  Batty    v.     Fout,    54    Ind.    482 

781;   11  W.  R.  304    (1863).     Hum-  (1870).      Williams    v.    Ilanley,    16 

boldt   Assn.   v.   Ducker's    Ex'r,  Ind.  App.  404;   45  N.   E.   Rep.  622 

Ky.         ;  82  S.  W.  Rep.  909   (1904).  (1890).     U.   S.   Co.  v.  Linville,   43 

IB  Knights    V.    Quarles,    4    Moore  Kan.  455;  23  Pac.  Rep.  597   (1890). 

532;    2   B.   &   B.   102    (1820).     Se-  Roberts  v.  Sterling,  4  Mo.  App.  593 

curity  Abstract  Co.  v.  Longacre,  56  (1879).      Kimball    v,    Connolly,    33 

Neb.    409;     76    N.    W.    Rep.    1075  How.    Pr.   247    (1800).     Puckett  v. 

(1898).  Abstract    Co.,    10    Texas    Civ.    App. 

329;  40  S.  W.  Rep.  812   (1897). 


MEASURE  OF  DAMAGES.  27 

the  employer  had  bought  and  paid  for  the  property,  and  he 
advanced  no  money  on  the  faith  of  the  search,  the  abstracter 
was  not  liable  for  an  omission  in  the  abstract.^*  He  is  not 
liable  for  failure  to  note  a  judgment,  the  lien  of  which  is  never 
enforced,  but  is  permitted  to  expire  under  the  statute  of  limita- 
tions, or  where  the  purchaser's  loss  results  from  the  inherent 
invalidity  of  his  title,  as  where  he  purchased  a  void  tax  title 
which  was  removed  as  a  cloud  on  the  title.^^ 

§  33.  Measure  of  damages.  Generally  speaking,  the  measure 
of  damages  for  the  failure  of  an  abstracter  to  perform  his 
undertaking  is  the  actual  loss  suffered  by  his  employer.  When 
a  mortgage  or  a  judgment  has  been  omitted  from  the  search, 
the  abstracter  is  liable  for  the  amount  necessarily  paid  in 
order  to  free  the  property  from  the  lien.  But  he  is  liable 
only  for  a  loss  which  is  the  direct  consequence  of  his  mistake. 
The  owner  of  real  estate  procured  an  abstract  of  the  title 
to  be  made  for  the  purpose  of  obtaining  a  loan  on  it.  The 
loan  was  made  on  a  mortgage  on  the  premises,  and  the  money 
was  paid  over  to  the  borrower.  There  was  a  judgment  of 
$26.95  against  a  former  owner  of  the  property,  which  was  a 
lien  on  it,  but  it  was  erroneously  omitted  from  the  abstract. 
After  the  loan  was  made  the  property  was  sold  on  execution 
on  the  judgment,  and,  as  there  was  no  redemption,  the  sheriff 
made  a  deed  to  the  purchaser.  Afterward  these  facts  were 
ascertained,  and  the  purchaser  for  the  sum  of  $400.00  deeded 
the  property  back  to  the  person  who  had  ordered  the  abstract. 
Suit  was  thereupon  brought  by  the  owner  against  the  abstracter 
for  the  $400.00  paid  to  recover  the  property.  It  was  held 
that  the  abstracter  was  not  liable — that  the  loss  occurred  from 
the  non-payment  of  the  judgment  and  not  from  the  error  of 
the  abstracter — that  it  was  no  injury  of  which  she  could  com- 
plain to  have  the  money  paid  to  herself  on  effecting  the  loan, 
instead  of  having  some  part  of  it  applied  to  the  satisfaction 
of  an  outstanding  judgment.  The  court  said:  "No  one  can 
say  what   actually   would  have  been   done   under   a   different 

18  Roberts     v.     Sterling,     supra;  Foehrenbach  v.  Title  and  Trust  Co., 
But  "loss"  is  a  relative  term,  and  Pa.,  ;     66     Atl.     Rep.     561 

failure  to  keep  that  which  one  has  (1907).     See  §   169. 
is  a  loss,  whicl)  may  be  covered  un-  "Denton  v.  Title  Co.,   112  Tenn. 

der    a    policy    of    title    insurance.  320;   79  S.  W.  Rep.  799    (1903). 


28  ABSTRACTER. 

State  of  facts  from  those  which  actually  occurred.  It  is  no 
answer  to  say  that  she  could,  or  that  she  might  have  paid  the 
judgment  or  prevented  a  sale;  it  does  not  make  it  certain  that 
it  would  have  been  done.  The  payment  was  not  a  necessary 
consequence  of  a  correct  return  by  the  clerk  (who  made  the 
abstract)  and  without  such  a  direct  and  necessary  result  to 
flow  from  his  act  or  omission,  the  defendant  cannot  be  made 
chargeable  with  damages. ' '  -°  The  measure  of  damages  for 
omitting  a  mortgage  from  the  abstract  is  the  amount  necessarily 
paid  to  take  up  the  omitted  mortgage  and  free  the  title  from 
it.-^  Where  one  purchased  land  relying  on  an  abstract  of 
title  furnished  to  him  by  an  abstracter,  which  omitted  all 
mention  of  an  attachment  on  the  land,  and  the  land  was  after- 
ward sold  and  a  deed  executed  under  the  attachment  before 
the  purchaser  had  notice  of  the  omission,  the  measure  of  his 
damages  is  not  the  amount  of  the  judgment  in  attachment,  but 
the  value  of  the  land.-^  A  purchaser  of  land  who  has  notice 
of  a  mortgage  omitted  by  mistake  from  the  abstract  can  make 
no  claim  against  the  abstracter  for  payments  made  by  him 
after  such  notice.*^  Where  an  abstracter  is  negligent  in  his 
duty  and  fails  to  show  a  prior  lien  on  the  property,  and  his 
employer  takes  a  mortgage  on  the  property  for  his  loan,  rely- 
ing on  the  abstract,  the  employer  is  entitled  to  bring  suit 
against  him  at  once  without  waiting  for  any  default  in  the 
mortgage  and  may  receive  the  difference  in  value  between  the 
security  he  contracted  for  and  that  which  he  actually  received.^* 
An  abstracter  is  responsible  for  the  amount  loaned  on  a  mort- 
gage, on  the  faith  of  his  abstract  showing  no  prior  lien,  when 
in  fact  the  property  was  mortgaged  for  more  than  its  value,  and 
on  foreclosure  of  the  prior  mortgage  the  money  loaned  on  the 
faith  of  his  certificate  was  lost.-^     In  speaking  of  the  measure 

20  Kimball   v.   Connolly,   33   How.  23  Brega    v.    Dickey,    IG    Grant's 
Pr.    247     (18GG).      See    Denton    v.  Chan.    (Ontario)    494    (1809). 
Title  Co.,  112  Tenn.  320;   79  S.  W.  24  Lawail  v.  Croman,  180  Pa.  St. 
Rep.  799    (1903).  532;    37  Atl.   Rep.   98;    57   Am.   St. 

21  Allen  V.  Clark,  7  L.  T.    (n.  s.)  Rep.    662i     (1897).       See    Lilly    v. 
781    (1863).  Boyd,   72  Ga.   83    (1883).      Scliolea 

22  Security  Abstract  Co.  v.  Lon,<:;-  v.    Brook,    G4    L.    T.     (n.    s.)     074 
acre,   56  Neb.  469;    76  N.   W.  Rep.  (1891). 

1073    (1898).  2.-,  Fox   v.   Tliibault,   33   La.   Ann. 

32    (1881). 


MEASURE  OF  DAMAGPS.  29 

of  damages  in  a  suit  against  an  abstracter  it  was  said:  "He 
(plaintiff)  paid  $2,500  for  a  full  fee-simple  title.  He  actually 
got  one-sixteenth  of  that  title  and  fifteen-sixteenths  of  a  life 
estate  for  and  during  the  life  of  (F.  S.)-  His  loss  was  the 
difference  between  what  he  paid  and  the  present  worth  of 
what  he  actually  received,  estimating  the  true  value  of  the 
lot  at  $2,500.  Nor  do  we  think  he  is  entitled  to  interest  on 
the  loss,  for  the  reason  that  he  has  had  the  uninterrupted 
possession  of  the  lot  and  has  enjoyed  the  rents  and  profits 
thereof. ' '  -®  Where  an  attorney  wrongfully  retains  an  abstract 
of  title  and  is  sued  for  conversion,  the  proper  measure  of 
damages  is  the  exact  cost  of  procuring  another  abstract  similar 
to  the  one  retained.-^ 

§  34.  Measure  of  damages,  duty  of  plaintiff.  "Where  one  who 
has  ordered  an  abstract  has  suffered  injury  by  reason  of  an 
error  in  it,  he  must  see  to  it  that  his  loss  is  not  swollen  by  any 
act  of  omission  or  commission  on  his  part,  but  he  is  not  called 
upon  to  do  an  act  which  will  not  affect  his  own  damages,  though 
it  would  be  of  service  to  the  abstracter.-^  Where  plaintiff 
employed  defendant  to  make  for  her  an  abstract  of  title  to  real 
estate  which  had  been  sold  on  execution,  and  defendant,  with 
no  fraudulent  purpose,  made  a  mistake  in  the  abstract  whereby 
it  appeared,  and  she  was  led  to  believe,  that  she  had  ten  days 
longer  to  redeem  the  land  from  the  sheriff's  sale  than  she 
actually  had  according  to  the  record,  and  she  learned  of  the 
mistake  one  day  before  the  time  for  redemption  actually  ex- 
pired, it  was  held  that  she  could  not  recover  damages  from 
defendant  on  account  of  her  inability  to  redeem  the  land  in 

26Keuthan  v.  Trust  Co.   101  Mo.  doubtedly    true    that    the    plaintiff 

App.  1;  73  S.  W.  Rep.  334    (1903).  was   under  obligation  to  make  rea- 

27  Watson  V.  Covvdrey,  23  Hun  sonable  exertions  to  prevent  the 
169    (1880).  increase   of   the   damages    likely   to 

28  Van  Schaick  v.  Sigel,  64  How.  fall  upon  himself,  and  thus  inci- 
Pr.  122  (1880).  "It  is  said  that  dentally  to  protect  defendant,  but 
when  plaintiff  became  aware  that  it  was  not  his  duty  to  go  one  step 
the  search  was  incorrect,  he  was  farther.  He  was  not  bound  to 
bound  to  communicate  that  fact  to  know  that  the  defendant  could  or 
the  defendant,  that  the  latter  might  would  buy  or  settle  the  Coffin  mort- 
have  bought  up  the  Coffin  niort-  gage,  and  he  is  not  to  suffer  be- 
gnge  before  the  costs  of  foreclosure  cause  he  did  not  think  of  that 
had   been   added   to   it.      It   is   un-  plan." 


30  ABSTRACTER. 

SO  short  a  time,  niiloss  she  used  ordinary  diligence  in  endeavor- 
in,ir  to  sret  the  money  to  redeem  after  the  mistake  was  discovered, 
and  that  in  the  exercise  of  ordinary  diligence  it  was  her  dnty 
to  inform  defendant  promptly  of  the  mistake,  so  that  he  might 
have  an  opportnnity  to  raise  the  necessary  money  for  her, 
avert  the  consequences  of  the  mistake  and  save  himself  from 
liability.-' 

§  35.  Commencement  of  action;  limitation  of  action.  An 
action  against  an  abstracter  to  recover  damages  arising  from  an 
error  or  omission  in  the  abstract  is  based  on  contract  and  not 
on  tort.  A  statute  governing  actions  for  relief  on  the  ground 
of  fraud  or  mistake  and  providing  that  the  cause  of  action 
shall  not  be  deemed  to  have  accrued  until  the  fraud  or  mistake 
has  been  discovered  does  not  apply  to  such  an  action.  It  is 
governed  by  the  law  of  contracts,  and  the  statute  of  limitations 
begins  to  run  from  the  date  of  the  delivery  of  the  abstract 
containing  the  defect,  even  though  the  error  be  not  discovered 
and  no  special  damage  result  therefrom,  until  long  after  the 
abstract  is  delivered.  The  contract  of  the  abstracter  is  not  a 
continuing  one,  so  that  a  new  cause  of  action  accrues  whenever 
special  damage  is  suiTered  by  its  breach.  "With  the  delivery  of 
the  abstract  the  contract  is  executed  and  the  breach  is  com- 
plete.^" The  doctrine  is  well  settled  that  in  an  action  against 
an  abstracter  for  negligence  or  unskillfulnesS  the  statute  of 
limitations  commences  to  run  from  the  time  the  negligent  or 
unskillful  act  was  committed,  and  the  employer's  ignorance  of 
the  negligence  or  unskillfulness  can  not  affect  the  bar  of  the 
statute.^^  The  cause  of  action  is  the  breach  of  duty  and  not 
the  consequential  damage  resulting  therefrom,  and  the  statute 
begins  to  run  from  the  time  of  the  breach,  and  not  from  the 
time  of  the  consequential  damage.^- 

2"  Roberts    V.     Abstract    Co.,    63  App.  473;   47  Pac.   Rep.   8    (1895). 

Iowa     76;     18    N.    W.     Rep.     702  si  Crawford    v.    Gaulden,    33    Ga. 

(1884).  173,     p.     183      (1862).       Bank     v. 

30  Russell     V.     Abstrnet     Co..     87  Vvatornian,    2G    Conn.    324     (1857). 

Towa    233;   54  N.  W.   Rep.  212;   43  Governor    v.    Gordon,    15    Ala.    72 

Am.   St.   Rep.  381    (1893).     Wilcox  (1848).      Mardis  v.    Shacklcford,  4 

V.     Plummer's    Ex'rs,    4    Ret.     172  Ala.    403     (1842).       Lattin    v.    Gil- 

(1830).      Fox   V.   Tliibault,   33   La.  lette,    05    Cal.    317;    30    Pac.    Rep. 

Ann.    32     (1881).     Provident    Loan  545;   20  Am.   St.   Rep.   115    (1802). 

Trust     Co.     V.     Walcott,     5     Kan.  32  Schade     v.     Gehner,     133    Mo. 


LIMITATION  OF  ACTIOX.  31 

§  36.  Statute  of  limitatioii.  A  statute  of  limitation  for  an 
action  on  a  contract,  obligation  or  liability  founded  upon  an 
instrument  in  writing  refers  to  contracts,  obligations  or  liabili- 
ties arising  from  instruments  of  writing  executed  by  the  parties 
who  are  sought  to  be  charged,  in  favor  of  those  who  seek  to 
enforce  contracts,  obligations  or  liabilities,  and  does  not  apply 
to  a  certificate  of  title  or  abstract  of  title  given  by  an  abstracter 
who  was  employed  to  examine  and  make  a  written  report 
of  the  condition  of  the  title,  where  damages  are  claimed  for 
negligence  of  the  abstracter  in  giving  an  incorrect  abstract  or 
certificate.  Such  a  statute  refers  to  contracts,  obligations  and 
liabilities  resting  in  or  growing  out  of  written  instruments, 
not  remotely  or  ultimately,  but  immediately.  In  discussing 
this  question  it  was  said:  *'The  written  certificate  of  title 
given  to  the  plaintiff  by  the  defendants,  although  an  instrument 
in  writing,  is  not  an  instrument  upon  which  their  liability  is 
founded.  *  *  *  The  contract  which  is  the  basis  of  the 
plaintiff's  cause  of  action  herein  does  not  rest  in  or  grow  out 
of  this  certificate,  nor  does  the  certificate  contain  any  obliga- 
tion or  contract  that  can  be  enforced,  or  which  is  susceptible 
of  a  violation  on  the  part  of  the  defendants,  or  under  which 
any  liability  can  accrue  against  them.  The  obligation  assumed 
by  them  was  that  created  at  the  time  of  their  acceptance  of 
the  employment  by  the  plaintiff  and  antedated  the  making 
of  the  certificate.  The  certificate  is  not  the  evidence  of  this 
obligation,  but  is  merely  evidence  of  the  act  done  by  them 
in  purported  satisfaction  of  the  obligation  assumed  by  them 
in  accepting  their  employment.  Instead  of  establishing  the 
contract  made  between  them  and  the  plaintiff,  it  is  the  evidence 
relied  upon  by  him  to  establish  the  breach  of  that  contract, 
and  necessarily  presumes  that  the  contract  was  complete  before 
it  was  given.  As  in  the  case  of  an  erroneous  deed  drawn  by 
an  attorney,  or  a  defective  plat  made  by  a  surveyor,  or  a 
wrong  prescription  given  by  a  physician,  it  is  only  evidence 
in  support  of  the  averment  that  the  implied  contract  for  the 
exercise  of  skill  and  care  v:as  violated,  and  is  not  the  contract 

252:    34    S.    W.    Rep.    576     (1895).  App.   108    (1877).  Lawall  v.  Gro- 

Lillv   V.    Boyd,   72   Ga.    83    (1883).  man,     180    Pa.     St.  532;     37  Atl. 

:Mooro   V.   Juvenal,   92    Pa.    St.   484  Eep.     98;     57    Am.  St.    Rep.  662 

(1880).    Rankin  v.  Schaeffer,  4  Mo.  (1897). 


32  ABSTRACTER. 

itself.     That  was  created  by  the  oral  agreement  of  employment 
and  was  broken  by  the  giving  of  a  faulty  writing. ' ' " 

SUITS  BROUGHT  BY   ABSTRACTER. 

§  37.  Suits  by  an  abstracter.  Where  an  abstracter  is  em- 
ployed to  make  an  abstract  of  title  to  certain  lands  and  to 
certify  to  a  certain  number  of  printed  copies,  in  the  absence 
of  a  special  contract,  he  is  entitled,  as  compensation  for  cer- 
tifying to  the  copies,  merely  to  the  reasonable  value  of  his 
services,  and  not  to  the  value  of  all  the  copies  regarding  them 
as  originals,  and  not  according  to  their  value  to  his  employer.^* 
^Yhere  an  abstracter  agrees  to  have  an  abstract  of  title  com- 
pleted within  a  specified  time,  and  he  knows  that  it  must  be 
completed  by  that  time  in  order  to  be  of  any  value  to  his 
employer,  he  cannot  recover  for  his  ser^^ices  if  it  is  not  promptly 
done.^^  Where  defendant,  with  the  intention  of  securin.g  a 
loan  on  his  property  from  an  abstracter,  signed  a  written 
agreement  to  pay  him  a  certain  sum  for  services  in  searching 
the  title,  whether  it  was  accepted  or  not,  the  contract  was 
binding,  though  plaintiff  refused  to  make  the  loan  offered.^** 
A  railroad  company  filed  with  the  chancery  clerk  a  deed  for 
certain  lands,  to  be  recorded  as  required  by  law.  The  clerk 
rendered  a  bill  for  $13.60  for  recording  and  $185.70  for  ab- 
stracting the  deed.  The  railroad  company  refused  to  pay  the 
abstract  fees,  but  the  court  held  that  the  laws  of  the  state 
provided  that  the  clerk  should  make  tract  indices  and  keep 
them  down  to  date,  and  that  the  company  was  required  to 
pay  for  abstracting  the  deed  and  posting  the  lands  under  the 
proper  captions.^^ 

83Lattin  v.  Gillette,  95  Cal.  317;  35  Griffin  v,  Arlit,  06  N.  Y.  Supp. 

30  Pac.  Rep.  545;   29  Am.  St.  Rep.  1033    (1905). 

115    (1892).     Quoted  with  approval  se  Title    Guarantee    &    Trust    Co. 

and  followed  in  the  Provident  Loan  v.  Steinberg,   103  N.  Y.  Supp.   857 

Trust  Co.  V.  Walcott,  5  Kan.  App.  (1907). 

473;  47  Pac.  Rep.  8    (1895).  37  Yazoo  R.    R.    Co.   v.   Edwards, 

34Krnyon    v.     Improvement    Co.,  78    Miss.    950;     29    So.    Rep.     770 

135  Mich.   103;  97  N.  W.  Rep.  407  (1901). 
(1903). 


CHAPTER  lY. 

COUNTY  OFFICERS  AS  ABSTRACTERS. 

§  38.  Generally.  In  some  states  in  early  times  when  lands 
were  cheap,  titles  were  simple  and  the  volumes  of  the  records 
were  few  in  number,  a  recorder  or  register  of  deeds,  as  a  part 
of  his  official  duty,  was  required  by  law  or  custom  to  search 
the  records  in  his  office,  and  to  give  information  as  to  whether 
there  were  on  record  deeds,  mortgages  or  other  instruments 
concerning  certain  land,  and  to  refer  persons  to  them,  so  that 
they  might  be  enabled  to  judge  for  themselves  or  to  take  counsel 
as  to  the  manner  in  which  the  title  was  affected  or  the  estate 
encumbered  by  them.  He  was  not  required  to  examine  such 
records  and  to  give  an  opinion  as  to  the  legal  effect  of  such 
instruments,  but  he  was  bound  to  find  such  instruments  as 
affected  the  title  and  to  give  an  abstract  of  them.  If  he  did 
not  make  the  search  with  care  and  skill  and  gave  incorrect 
information,  he  was  guilty  of  a  breach  of  duty  for  which  he 
and  the  sureties  on  his  official  bond  were  liable.  It  was  said 
in  one  case:  "In  Pennsylvania  it  has  ever  been  a  portion  of 
the  duty  of  the  prothonotary  to  make  searches.  It  is  an  inci- 
dent to  his  offi.ce  as  a  keeper  of  the  records  of  the  coimty. 
The  fee  bill  gives  him  compensation  for  his  services  and  for 
his  certificates."^  In  this  case  it  was  held  that  where  the 
official  custodian  of  public  records  searched  the  records  and 
gave  a  certificate  as  to  the  existence  or  non-existence  of  mort- 
gages, judgments  and  other  liens,  he  was  liable  to  the  pur- 
chaser of  the  property  for  damages  incurred  by  him  through 
a  mistake  in  the  certificate ;  that  the  giving  of  such  a  certificate 
was  an  incident  to  his  office  and  a  part  of  his  duty;  that  the 
sureties  on  his  official  bond  were  liable  for  errors  made  by  him 
in  the  course  of  such  work,  and  that  it  was  immaterial  that 
no  seal  of  his  office  was  attached  to  the  certificate  given  by 
him.     In  an  earlier  case  it  was  held  that  a  recorder,  giving 

iZiegler    v.     Commonwealth,     12   Pa.  St.  228    (1849). 

3  33 


34  ABSTRACTER. 

a  certificate  that  he  had  searched  the  records  and  could  find 
no  inort^af^o  on  certain  land,  and  charging  and  receiving  the 
fee  allowed  by  law,  was  liable  together  with  the  sureties  on 
his  official  bond  if  it  afterward  appeared  that  there  then  was 
a  mortgage  on  record,  and  the  party  obtaining  the  certificate 
was  prejudiced  by  the  error.*  Where  a  recorder  makes  an 
abstract  as  a  part  of  his  official  duty  and  certifies  that  certain 
property  is  free  from  incumbrance  when  in  fact  it  is  mortgaged 
for  more  than  it  is  worth,  and  a  new  loan  is  made  by  the 
person  ordering  the  abstract,  and  the  debt  is  lost  by  reason 
of  the  foreclosure  of  the  prior  mortgage,  the  recorder  and  the 
sureties  on  his  official  bond  are  liable  for  the  loss.  The  action 
is  ex  contractu  and  does  not  arise  from  a  quasi  offence.* 
Where  it  is  the  duty  of  the  officer  to  make  abstracts,  he  is 
liable  on  his  official  bond  for  the  errors  of  his  deputies  and 
clerks  in  performing  the  service.* 

In  a  Canadian  case  it  was  held  that  the  registrar  is  the 
person  by  whom  all  searches  are  to  be  made.  A  person  in- 
quiring into  the  state  of  a  title  has  no  right  to  make  searches 
and  inspect  the  books,  but  he  may  require  the  registrar  to  make 
searches  and  produce  for  his  inspection  the  books  and  instru- 
ments of  the  office  relating  thereto.^ 

§  39.  County  officers  not  public  abstracters.  Under  the 
statutes  of  some  states  certain  county  officers  are  required  to 
make  searches,  but  they  are  not  public  abstracters  to  the 
extent  that  they  may  be  required  to  make  a  complete  list 
of  all  liens  and  transfers  affecting  particular  pieces  of  land. 
They  may  only  be  required  to  search  for  certain  instruments 
to  which  their  attention  is  specifically  directed  by  the  applicant 
and  to  certify  to  such  instruments  if  they  are  recorded  or 
filed  in  their  offices.*^     In  setting  forth  the  duty  of  the  clerk, 

2McCaraher  v.  Commonwealth,  5  Pr.  211;   60  How.  Pr.   122    (1880). 

Watts  &  Scrp.  21;  .39  Am.  Dec.  106  Kimball   v.   Connolly,   32   How.   Pr. 

(1842)..     See  Lusk  v.  Carlin,  5  111.  247   (1866).    Peabody  B.  &  L.  Assn. 

396      (1843).        Commonwealth     v.  v.   Houseman,    89    Pa.    St.    261;    33 

Owen,    2    Wkly.    Notes    Cases    200  Am.  Rep.   7.57    (1879). 

<1875).  cKoss    V.    McLay,    20    Up.    Can. 

8  Fox   V.    Thibault,    33    La.    Ann.  Com.  Pleas.  190    (1876). 

32   (1881).  0  Dirks  v.   Collin,   37   Wash.  620; 

*y^n   Schaick   v.   Sigel,   58   How.  79  Pac.  Rep.   1112    (1905). 


COUNTY  OFFICER.  35 

who  was  ex  officio  recorder  of  deeds,  to  make  searches  on  the 
order  of  interested  persons,  it  was  said:  "The  clerk,  when 
he  is  called  upon  to  make  a  search,  is  entitled  to  have  such 
information,  either  by  the  names  of  parties  or  by  reference 
to  the  records  in  his  office,  as  will  enable  him,  by  examining 
the  indices  or  the  record  to  which  he  is  referred,  to  ascertain 
the  premises  in  relation  to  which  he  is  required  to  make  a 
search.  A  party  desiring  a  search  cannot  carve  out  a  de- 
scription of  lands  at  his  will  and  require  the  services  of  the- 
clerk  to  ascertain  the  condition  of  the  title.  He  must  furnish 
the  clerk  with  such  information  as  to  the  state  of  the  title  as 
will  enable  him  to  ascertain  the  present  status  of  the  title 
by  a  simple  inspection  of  the  records.  Nor  is  the  clerk  re- 
quired, upon  a  call  for  a  search  by  such  a  description,  to 
certify  that  he  can  find  no  deeds  on  record  for  the  premises 
described,  for  the  premises  may  be  embraced  in  the  general 
description  in  some  deed  on  record  and  he  is  under  no  obliga- 
tion to  employ  a  surveyor  or  to  make  inquiries  or  examinations 
outside  of  his  office  to  ascertain  facts  which  do  not  appear 
distinctly  by  his  records.  He  may  decline  to  make  such  a 
search  until  he  is  furnished  with  the  information  that  will 
enable  him  to  find  and  identify  the  premises  by  his  records. 
Nor  is  he  under  obligation  to  certify  that  a  description  he  cer- 
tifies from  the  record  includes  a  part  only  of  the  premises 
described  in  the  order  for  the  search.  If  he  gives  the  de- 
scription as  it  is  on  the  records  with  all  its  qualifications  and 
recitals,  it  is  the  province  of  counsel  to  advise  as  to  whether 
the  description  covers  the  entire  premises. ' '  ^ 

§  40,  Officers  should  not  be  required  to  make  abstracts.  With 
the  increase  of  wealth  titles  have  become  complex,  and  with 
the  great  increase  in  population  and  dealings  in  land,  the 
number  of  volumes  of  records  has  become  very  large  in  most 
offices.  It  is  no  longer  practicable  for  a  man  to  be  a  searcher 
of  public  records  merely  because  he  has  been  elected  to  an 
office  which  makes  him  the  custodian  of  them.  It  has  become 
necessary  for  men  to  devote  themselves  to  the  business  of 
examining  records  and  to  prepare  themselves  for  the  work 
by   special  study   and  education.     Sureties  on  the  bond  of  a 

T  State  V.  Deacon,  44  N.  J.  Law,  559    (1882). 


3G  ABSTRACTER. 

recorder  or  register  of  deeds  should  not  now  be  held  to  guar- 
antee the  competency  of  their  principal,  his  deputies  and  clerks, 
skillfully  to  perform  the  responsible  duty  of  examining  public 
records  for  those  who  may  have  occasion  to  deal  in  real  estate. 
Speaking  generally  along  the  lines  of  modern  development,  all 
a  recorder  or  register  of  deeds,  as  such,  should  have  to  do 
with  searching  public  records  is  to  furnish  facilities  for  the 
examination  of  the  books  in  his  office  by  the  public  and  by 
the  agents  whom  members  of  the  public  may  employ  for  that 
service.®  He  is  fully  occupied  with  the  due  administration  of 
the  work  of  recording  in  his  office  and  with  the  furnishing  of 
certified  copies  of  records  to  those  Avho  may  desire  them.  Every- 
one is  bound  to  take  notice  of  the  records  which  he  makes, 
but  neither  law  nor  custom  now  presumes  that  a  prudent  man 
may  rely  on  his  search  and  certificate,  simply  because  he  is  in 
charge  of  the  records  and  has  given  a  small  penal  bond  which 
possibly  may  be  available  to  one  injured  by  his  lack  of  care 
or  want  of  skill,* 

§  41.  Statutes  authorizing  officers  to  make  searches.  The 
statutes  of  some  states  provide  for  the  making  of  tract  indices 
to  the  records  in  the  recorders'  offices  and  for  the  making  of 
abstracts  of  title  by  the  recorders  and  their  assistants.  Where 
such  statutes  are  in  force  it  is  not  contemplated  that  the  work 
will  be  done  by  the  officers  themselves,  but  provision  is  made 
for  the  hiring  of  skilled  and  competent  persons  to  do  the 
work  under  the  general  supervision  of  the  officers.  Under  such 
statutes  the  officer  does  not  make  abstracts  strictly  in  his  official 
capacit}'-,  but  rather  as  the  agent  of  the  county,  and  the  county 
in  making  them  acts  in  its  private  and  not  in  its  governmental 
capacity.  Whether  the  abstracter  is  liable  for  errors  on  his 
official  bond,  or  whether  the  county  may  be  called  on  to  pay 
for  his  errors  out  of  its  general  funds  may  not  be  clear  from 
the  terms  of  the  statute.  Even  where  the  county  is  made  re- 
sponsible for  the  care  and  skill  of  the  recorder  in  performing 
Buch  work,  the  situation  may  be  far  from  satisfactory  to  those 
who  patronize  his  abstract  office,  for  unless  a  fund  is  appro- 
priated by  the  proper  authority,   which  may  be  used  by  the 

8  See  §  59.  »§  59. 


COUNTY  OFFICER.  37 

recorder  in  the  payment  of  losses,  there  is  no  way  in  which 
an  injured  person  may  be  indemnified  except  by  obtaining 
judgment  against  the  county.  Under  some  statutes  clerks  of 
courts  must  certify  on  abstracts  of  title  as  to  the  existence  or 
non-existence  of  judgments  of  record  in  their  offices.^**  These 
are  matters  of  a  legislative  policy  which  has  not  been  followed 
extensively.  ^ 

§  42.  Clerk  held  not  liable  for  error  in  a  certificate.  Where 
there  was  no  statute  requiring  an  officer  to  search  the  records 
and  to  certify  as  to  the  result  of  his  search,  and  a  clerk  of 
court,  who  was  neither  a  lawyer  nor  an  abstracter,  appended 
his  certificate  to  an  abstract  of  title,  stating  that  there  wns 
no  suit  pending  affecting  the  land,  and  received  twenty-five 
cents  which  was  the  fee  allowed  by  law  for  a  certificate  alone, 
it  was  held  that  it  would  not  be  presumed,  in  the  absence  of 
evidence,  that  the  clerk  agreed  to  make  a  careful  search  and 
correct  report,  but  the  burden  of  showing  an  express  agree- 
ment to  do  so  rested  on  the  plaintiff.  The  clerk  in  such  a  case 
will  not  be  held  liable  for  mere  errors  of  judgment  or  want 
of  skill  in  determining  the  legal  effect  of  a  suit  pending  in 
the  court  of  which  he  is  clerk,  and  the  plaintiff  relying  on 
the  certificate,  in  the  absence  of  such  an  agreement,  must  him- 
self bear  any  loss  arising  from  an  honest  error  of  judgment 
on  the  part  of  the  clerk.  Where  an  officer  receives  no  com- 
pensation for  making  a  search,  he  is  not  liable  for  giving  a 
certificate  which  the  law  does  not  require  him  to  make,  and 
where  the  making  of  such  certificate  is  not  a  part  of  his 
official  duty,  he  is  not  liable  for  any  error  contained  in  it, 
unless  he  is  guilty  of  fraud  or  willful  misstatement." 

§  43.  Register  g^uilty  of  misconduct.  Where  a  register  of 
deeds,  over  his  official  signature,  knowingly,  purposely  and  de- 
signedly, but  neither  corruptly  nor  with  intent  to  defraud, 
made  and  delivered  to  a  person  a  certificate  that  he  had  ex- 
amined the  title  to  certain  land  and  found  no  incumbrance 
on  it,  when  he  well  knew  that  the  records  showed  an  attachment 
suit  and  that  the  certificate  was  false,  he  was  guilty  of  mis- 

10  See  §   131.  685;    32   Pac.   Rep.   410;    22  L.   R. 

"Mallory  v.  Ferguson,  50  Kan.      A.  99    (1893). 


33  ABSTRACTER. 

conduct  in  office,  although  it  was  no  part  of  his  official  duty 
to  make  searches  or  to  issue  such  a  certificate.^- 

§  44.  Where  the  oflficer  acts  as  private  abstracter.  It  is  evi- 
dent from  the  cases  which  have  been  reviewed  that  the  duty 
of  officers  to  make  abstracts  is  not  satisfactory  or  well  defined, 
and  that  there  is  no  well  established  law  governing  the  right 
of  an  injured  person  to  recover  damages  against  an  officer  and 
the  sureties  on  his  official  bond  for  a  mistake  in  an  abstract 
made  by  him.  But,  unless  he  is  prohibited  by  statute  from  so 
doing,  there  is  no  reason  why  a  county  officer  may  not  hold 
himself  out  to  the  public  as  a  professional  abstracter  and  make 
abstracts  of  title  for  hire,  so  long  as  his  private  business  does 
not  interfere  with  the  performance  of  his  official  duties.  Where 
the  recorder  is  not  required  by  law  to  search  the  records  and 
certify  to  the  result  of  his  labor,  he  may  contract  as  an  indi- 
vidual to  make  such  searches  and  certificates.  If  he  gives  an 
erroneous  certificate  and  one  is  injured  by  it,  he  incurs  no 
liability  as  an  official,  but  he  is  liable  for  breach  of  his  contract 
as  an  abstracter.^^ 

12  state  V.  Leach,  60  Me.  58;  11  acre,  92  Ind.  547  (1883).  Smith 
Am.  Rep.   172    (1872).  v.    Holmes,    54    Mich.    104;    19    N. 

"Mechanics  Bldg.  Assn.  v.  Whit-      W.  Rep.  767   (1884). 


CHAPTER  y. 

OPINIONS   AND    CERTIFICATES   OF    TITLE. 

§  45.  Generally.  The  business  of  certifying  to  the  state 
and  condition  of  titles  to  real  estate  is  one  of  great  importance 
and  responsibility.  It  has  long  been  pursued  by  solicitors  and 
conveyancers  in  England,  and  many  eminent  lawyers  in  that 
country  have  devoted  themselves  to  the  law  of  real  property. 
In  this  country  such  certificates  were  primarily  the  work  of 
lawyers,  and  opinions  of  title  based  on  an  examination  of  an 
abstract  of  the  title  are  still  rendered  by  lawyers  in  every  city 
and  county  seat.  Abstracters  of  title  formerly  confined  their 
work  to  furnishing  in  an  abridged  form  a  compilation  of  the 
title  as  shown  by  the  records,  but,  with  the  formation  of  title 
companies  with  large  capital  stock,  the  work  of  certifying  to 
the  state  of  titles  has  become  one  of  the  features  of  the  business 
of  such  companies.  Whether  such  certificates  are  signed  by 
lawyers  or  by  title  companies,  they  are  the  results  of  labor 
done  by  lawyers,  for  such  labor  requires  an  acquaintance  with 
the  laws  of  real  property  and  a  practical  legal  knowledge  of 
titles,  w^hich  can  be  derived  only  from  long  experience  in  deal- 
ing with  them.  One  who  can  examine  a  title  and  state  its 
condition  must  have  prepared  himself  by  a  course  of  special 
study  and  education.  Reports  w'hich  are  given  by  lawyers  are 
usually  called  opinions  of  title,  and  those  which  are  given  by 
title  companies  are  usually  called  certificates  of  title,  but  they 
are  to  the  same  effect  and  are  governed  by  the  same  legal  rules. 
A  corporation  organized  for  the  purpose  of  examining,  certify- 
ing and  insuring  titles  to  real  estate,  which  in  all  matters  re- 
lating to  conveyancing  and  certifying  to  titles  assumes  to 
discharge  the  same  duties  as  an  individual  conveyancer  or 
attorney,  is  subject  to  the  same  responsibilities,  and  its  duty  to 
its  employer  is  governed  by  the  principles  applicable  to  attorney 
and  client.^ 

lEhmer  v.  Title  Co.,   156  N.  Y.      affirming  34  N.  Y.  Supp.   1132;  89 
10;    50   N.    E.    Rep.    420     (1898);       Hun    120   (1895). 

39 


40  CERTIFICATE  OF  TITLE. 

§  4G.  Hule  of  liability  for  an  opinion  or  certiicate.  One 
who  gives  au  opiniou  or  a  certiiicate  of  title  unuerlake.s  to  act 
with  reasonable  care  and  ordinary  skill  in  examining  the  title, 
and  in  passing  on  the  legal  questions  involved.  He  is  not  liable 
for  every  error  or  mistake  made  in  deterniiuiag  sucii  questions, 
for  in  this  respect  no  one  is  bound  to  know  all  the  law,  and 
there  are  many  questions  in  titles  about  which  there  may  be 
doubt.  In  such  matters  he  must  exercise  judgment  as  a  skilled 
and  cautious  examiner.  This  is  about  as  definite  as  his  dulit.'S 
and  liabilities  may  be  defined.  It  is  difficult,  if  not  impossible, 
to  lay  down  any  general  rule  which  will  control  the  measure 
of  his  liabilities  in  all  cases.  Good  faith  and  honest  service 
must  be  given,  but  questions  of  the  presence  or  absence  of 
reasonable  care  and  ordinary  skill  must  be  determined  by  the 
facts  in  each  case.^  A  mere  error  of  judgment  on  a  doubtful 
question  of  the  construction  of  a  statute  is  not  to  be  regarded 
as  evidence  of  a  want  of  competent  knowledge  or  skill,  or  of 
negligence,  but  a  disregard  of  a  plain  statute  is  so  to  be  re- 
garded.^ Where  one  who  certified  that  a  title  was  good,  in  ex- 
amining a  transfer  by  tax  deed  under  a  judicial  proceeding,  saAV 
that  the  record  showed  jurisdiction  in  the  court  to  render  the 
judgment  on  which  the  deed  was  founded,  and  that  the  parties 
to  the  judgment  and  the  title  claimed  under  it  were  identical 
in  name  and  description,  it  was  not  actionable  negligence  for 
him  to  fail  to  make  inquiries  dehors  the  record  to  ascertain  any 
possible  defect  in  the  proceedings,  or  error  in  the  name  or 
description  of  the  parties.*  A  deed  conveyed  certain  realty  to 
two  grantees  "to  be  owned  equally  between  them."  A  cer- 
tificate of  title  stated  that  there  was  no  incumbrance  on  the 
property  and  that  the  title  "now  remains  in  the  name  of  the 
within  named  grantees."  It  was  held  that  nothing  in  the 
certificate  implied  that  the  grantees  held  each  an  undivided 
moiety  of  the  whole  realty."*  An  attorney  examining  an  ab- 
stract of  title  must  carefully  examine  each  instrument  affecting 
the  title."     If  a  client  informs  his  attorney  that  he  has  made 

2  O'Barr  v.  Alexander,  37  Ga.  195      101  I\To.  App.  1  ;  73  S.  W.  Kep.  .■^.34 
(1S67).      Caverly  v.   McOwcn,    123       (1903). 

Mass.  574    (1878).  c  Tripp  v.  Hopkins,   13   R.    I.   99 

3  Caverly  v.  McOwcn,  supra.  (1880). 

*  Keuthan  v.  St.  Louis  Trust  Co.,  «  Iroson  v.  Pearman,  5  Down.  & 

R.  087    (1825). 


RULE  OF  LIABILITY.  41 

inquiries  into  certain  matters  relating  to  the  land,  which  are 
outside  of  the  abstract,  and  leads  him  to  believe  that  he  is 
satisfied  on  these  points,  it  is  not  negligence  in  the  attorney 
to  omit  to  look  into  such  matters/ 

§  47.  Rule  of  liability,  continued.  "Where  the  attorney,  em- 
ployed to  examine  the  title  to  land  with  a  view  of  placing  a 
mortgage  on  it,  knew  that  a  building  was  being  built  on  the 
premises,  it  was  his  duty  to  ascertain  whether  there  were  liens 
for  materials  and  labor  furnished,  and  his  failure  to  do  so, 
whereby  the  mortgagee  was  damaged,  was  a  breach  of  his  con- 
tract of  employment.^  One  who  certifies  to  a  purchaser  that 
the  title  to  land  is  good,  is  guilty  of  actionable  negligence  where 
the  title  was  derived  from  a  decree  of  foreclosure  of  a  mort- 
gage which  had  been  partially  released,  but  the  decree  directed 
the  sale  of  that  part  of  the  land  which  had  been  released,  though 
reference  had  been  made  to  the  release  in  the  bill  of  foreclosure. 
In  examining  title  to  land  which  had  been  sold  under  fore- 
closure, it  is  actionable  negligence  not  to  observe  that  the  decree 
orders  the  sale  of  land  which  has  actually  been  released  from 
the  mortgage,  instead  of  land  which  is  still  subject  to  the 
mortgage.^  If  a  title  company  employed  to  conduct  the  pur- 
chase of  a  certain  house  and  lot,  negligently  procures  from  the 
owner  of  that  and  an  adjoining  house,  and  delivers  to  its  em- 
ployer, a  deed  covering  the  adjoining  house  instead  of  the  one 
intended  by  both  the  grantor  and  the  grantee,  the  deed  does 
not  constitute  a  good  conveyance,  and  the  company  is  liable 
to  its  employer  for  the  injury.  In  such  a  case  the  duty  of 
reducing  the  damages  arising  from  the  negligence  of  the  com- 
pany, by  selling  for  the  highest  obtainable  price  the  premises 
so  deeded,  does  not  devolve  on  the  grantee  on  the  discovery  by 
him  of  the  mistake  in  the  deed;  and  the  value  of  the  property 
through  error  described  in  the  deed,  as  compared  with  the 
value  of  the  property  intended  to  be  conveyed,  is  of  no  con- 
sequence on  the  question  of  damages.  The  grantee  of  the 
erronous  deed  procured  its  reformation  and  obtained  the  right 

7  Waine  v.  Kempster,  1  F.  &  F.  Ex'r,  Ky.  j  82  S.  W.  Rep. 
Nisi  Prius  Cases,  695    (1859).     See      9G9    (1904). 

Echoles  V.   Brook,  64  L.  T.    (n.  s.)  »  Byrnes    v.    Palmer,    45    N.    Y. 

837    (1891).  Siipp.   479;    18   X.   Y.   App.   Div.   1 

8  Humboldt     Assn.     v.     Ducker's       (1897). 


42  CERTIFICATE  OF  TITLE. 

property,  but  he  found  that  it  was  incumbered  by  a  mortgage. 
On  being  evicted  by  a  foreclosure  of  the  mortgage,  the  grantor 
being  insolvent,  it  was  held  that  he  was  entitled  to  recover 
from  the  title  company  the  amount  of  the  purchase  money  paid 
by  him,  that  being  less  than  the  amount  of  the  mortgage.^" 

§  48.  Not  a  guarantor  or  indemnitor.  Where  one  gives  a 
certificate  that  the  title  is  good,  he  does  not  thereby  become 
a  guarantor  or  an  indemnitor,  but  he  is  liable  for  any  mistake 
arising  from  want  of  due  care  or  diligence,  or  from  ignorance 
of  his  business.^^  In  one  case  it  was  held  that  where  an  attor- 
ney certifies  that  the  title  to  property  is  good,  he  thereby 
warrants  that  the  title  will  not  only  be  found  good  at  the 
end  of  contested  litigation,  but  that  it  is  free  from  any  palpable, 
grave  doubt,  or  serious  question  of  its  validity;  that  an  attor- 
ney who  conducts  a  suit  to  foreclose  a  mortgage  taken  in 
reliance  on  his  certificate  is  not  entitled  to  extra  compensation 
because  of  labor  and  time  consumed  in  such  suit  in  contesting 
the  validity  of  the  mortgage  upon  a  question  within  the  scope 
of  his  certificate ;  that  whatever  extra  labor  or  time  is  bestowed 
in  conducting  the  suit  on  account  of  such  question  is  bestowed 
for  his  own  benefit  in  maintaining  his  certificate,  and  that  he 
is  only  entitled  to  charge  his  client  as  for  an  uncontested  case.^^ 

§  49.  Attorney  employed  by  one  and  paid  by  another.  One 
who  is  emplo^^ed  by  the  lender  to  examine  and  certify  to  the 
title  of  property  offered  as  security  for  a  contemplated  loan 
to  the  borrower  is  responsible  to  the  lender  for  the  correctness 
of  the  certificate,  although  the  cost  of  the  certificate  is  paid 
by  the  borrower.^^  Where  an  attorney  representing  the  mort- 
gagor undertakes  at  the  request  of  the  mortgagee  to  see  that  the 
mortgage  is  a  first  lien,  although  the  mortgagor  is  to  pay  the 
fees,  he  is  bound  to  perform  the  duty  with  ordinary  and  reason- 
able skill  and  care  in  his  profession,  and  on  failure  so  to  do 
he  will  be  liable  to  the  mortgagee  for  negligence  in  that  re- 

loEhmer  v.  Title  Co.,  156  N.  Y.  kin   v.    Schaeffer,  4   Mo.   App.    108 

10;    50    N.    E.    Rep.    420     (1898);  (1877).    Sec  §  1. 

amrminp  34  N.  Y.   Supp.   1132;   89  12  Page  v.  Trutch,  18  Fed.  Cases, 

Hun    120  (1805).  995;   3  Cent.  L.  Jour.  559    (1876). 

11  Schade  v.  Geluipr,  133  Mo.  252;  i3  Pago  v.  Trutch.  18  Fed.  Cases, 

34  S.  VV.   Rep.   576    (1895).      Ran-  995;  3  Cent.  L.  Jour.  559    (1876). 


RULE  OF  LIABILITY.  4-3 

spect.^*  In  a  case  involving  a  similar  proposition  it  was  said: 
**The  burden  cast  upon  the  mortgagor  of  paying  for  the 
services  of  the  attorney  selected  by  (the  mortgagee)  to  guard 
his  interests  was  simply  a  condition  of  the  loan,  and  did  not 
alter  the  status  of  such  attorney  or  diminish  the  duty  or 
responsibility  which  he  owed  to  his  employer. ' '  ^^ 

§  50.  Liability  to  third  persons.  One  who  issues  a  certificate 
of  title  is  liable  to  the  person  who  employed  huu,  and  he  is  not 
liable  to  a  third  person  to  whom  his  employer  furnished  the 
certificate  for  the  purpose  of  selling  the  property  or  of  procur- 
ing money  thereon.^**  This  is  in  accordance  with  the  general 
rule  that  to  constitute  actionable  negligence  the  person  causing 
the  injury  must  owe  a  duty  to  the  person  sustaining  the  loss.^^ 

i*LawalI    V.    Groman,     180    Pa.  son    v.    Haldane,    7    C.    &    F.    762 

632;    37  Atl.  Rep.   98;    57  Am.  St.  (1837). 

Rep.  6G2   (1897).  is  Savings  Bank  v.  Ward,  100  U. 

15  Wittenbrock     v.     Parker,     102  S.    195    (1879).      Dundee   Mtg.   Co. 

Cal.  93;   36  Pac.  Rep.  374    (1894).  v.  Hughes,  20  Fed.  Rep.  39   (1884). 

See     Scholea     v.     Brook,     63     Law  Bulkley    v.    Gray,     110    Cal.    339; 

Times    (n.    s.),    837;    64    Ibid.    674  42  Pac.  Rep.  900;  52  Am.  St.  Rep. 

(1891).       Lawall    v.    Groman,    180  88    (1895).      Fish  v.   Kelly,    17    C. 

Pa.   St.   532;    37   Atl.   Rep.   98;    57  B.    (n.  s.)    194    (1864). 

Am.  St.  Rep.  662   (1897).    Donald-  i7  See  §  18  et  seq. 


CHAPTER  VI. 

DUTY    OF   THE   CUSTODIAN    OF   RECORDS. 

§  51.  Duty  to  watch  searchers  in  his  office.  The  statutes  of 
the  different  states  provide  that  the  county  officers  shall  have 
custody  of  the  records  in  their  respective  offices  and  that 
they  shall  keep  them  safely.  These  officers  are  required  to  give 
bonds  for  the  faithful  performance  of  their  duties.  It  is 
evidently  the  purpose  of  the  law  to  place  on  them  the  responsi- 
bility of  correctly  making  and  carefully  preserving  the  public 
records  committed  to  their  care.  Courts  have  been  called  on 
frequently  to  decide  on  the  rights  of  members  of  the  public 
to  the  use  and  inspection  of  the  records  in  public  offices,  and 
they  have  taken  occasion  in  some  cases  to  lay  down  most  con- 
servative and  even  severe  rules  for  the  guidance  of  such  officers 
in  the  care  and  custody  of  public  records.  In  one  case  it  was 
said:  "A  single  stroke  of  the  pen,  the  erasure  or  addition  of 
a  single  word,  may  change  the  character  of  a  conveyance  or 
destroy  the  most  valuable  property  right.  The  clerk  is  un- 
faithful to  his  trust  if  he  allow  one  of  the  record  books  to 
remain  for  an  instant  in  the  hands  of  a  stranger  out  of  his 
sight.  If  he  performs  his  whole  duty  he  must  w^atch  or  em- 
ploy an  assistant  to  watch  each  and  every  person  who  examines 
or  abstracts  a  single  title  record."^  And  in  another  case  it 
was  said:  *'IIe  is  required  to  keep  all  books,  papers  and 
dockets  belonging  to  his  office  with  care  and  security.  He 
cannot  do  this  if  any  person  may  handle  or  inspect  them  other- 
wise than  under  his  own  eye.  In  our  judgment  any  clerk 
would  be  guilty  of  a  failure  in  his  official  duties  should  he 
permit  any  person,  if  only  for  a  minute,  though  he  might  be 
familiar  with  the  books  and  be  able  to  examine  them  without 
the  clerk's  aid,  to  have  custody  of  the  books  and  papers  of 

iBean  v.  Pcoplo,  7  Colo.  200;  2  20  Atl.  Rop.  982;  10  L.  T5.  A.  212 
Pac.  Rep.  909  (1883).  See  also  (1890).  Cormack  v.  Wolcott,  .37 
Belt  V.   Abstract  Co.,   73   Md.   289;       Kan.  391;  15  Pac.  Pep.  245   (1887). 

44 


MUST  WATCH  SEARCHERS.  45 

his  office.  *  *  *  No  person  has  a  right  to  examine  or 
inspect  the  records  of  his  office,  except  in  his,  the  clerk's  pres- 
ence and  under  his  observation.  If  he  may  do  this  for  a 
minute,  the  clerk  is  not  keeping  them  safely  and  securely. 
A  blot  or  a  scratch  may  be  made  in  a  minute  that  may  alter 
a  record ;  a  leaf  may  be  abstracted  in  a  minute,  and  if  one  man 
may  of  right  take  a  record  book  and  abstract  the  contents — - 
work  a  week  upon  it — any  other  man  may  do  it. "  ^  To  the 
great  credit  of  the  thousands  of  persons  who  have  been  custo- 
dians of  public  records  it  may  be  stated  that  no  case  is  re- 
ported of  an  action  against  one  of  them  for  failure  to  keep 
the  records  safely.  The  rules  laid  down  by  courts  have  been 
stated  incidentally  and  as  a  part  of  arguments  in  opinions  in 
eases  involving  other  issues.  It  is,  of  course,  proper  for  judges 
to  state  in  forcible  language  the  revisory  power  which  the 
courts  have  over  the  duty  of  public  officers,  but  it  must  be 
remembered  that  such  officers  must  exercise  their  judgment 
and  act  accordingly  in  concrete  cases,  and  that  it  is  only  for 
an  abuse  of  their  discretion  for  which  they  may  be  called  to 
account  by  the  courts. 

§  52.  Discretion  of  custodiaii  in  management  of  office.  The 
custodian  of  public  records  has  power  to  exercise  a  reasonable 
discretion  in  the  care,  management  and  government  of  his  office, 
and  in  the  preservation  of  the  books  and  papers  contained  in  it, 
and  so  far  as  that  discretionary  power  extends,  he  is  entitled 
to  exercise  it  according  to  his  best  judgment  to  secure  good 
order  and  the  preservation  of  the  records  committed  to  his 
custody.  To  that  extent,  his  powers  and  duties  are  not  subject 
to  be  interfered  with  or  controlled  by  the  court.  If,  however, 
he  exercises  his  power  in  such  a  manner  as  naturally  to  bring 
about  injury  to  the  records,  he  is  liable  to  the  state  for  the 
consequent  damage,  and  if  he  exercises  his  power  in  conflict 
with  the  rights  of  the  public,  he  is  answerable  in  damages  to  the 
person  injured,^  or  may  be  compelled  by  the  writ  of  mandamus 
or  injunction  to  act  in  conformity  to  law.  It  is  for  the  officer 
to  determine  in  each  particular  case  whether  he  or  one  of  his 
assistants  shall  stand  beside  one  who  is  examining  some  records 

2  Buck  V.  Collins,  51  Ga.  393;  (1880)  ;  Brewer  v.  Watson,  71  Ala. 
21  Am.  Rep.  236    (1874).  209;     46     Am.     Rep.     318     (1882). 

3  Brewer  v.   Watson,   65  Ala,    88      O'Hara  v.  King,  52  111.  303   (1869). 


4G  CUSTODIAN  OF  RECORDS. 

or  papers  in  his  office.  If  he  has  reason  to  believe  that  the 
person  making  the  examination  contemplates  the  mutilation  or 
abstraction  of  some  jiart  of  the  records,  he  will  certainly  be 
required  to  be  vig:ilant;  or  if  he  knows  that  some  paper  or 
record  is  the  subject  of  dispute  or  conti'oversy,  he  will  be  held 
to  a  strict  degree  of  care  in  the  custody  and  preservation  of  it. 
He  is  required  by  the  nature  of  his  office  to  adopt  a  system  in 
the  use  of  books  and  papers,  which  will  protect  the  public 
both  in  the  preservation  and  inspection  of  them.  The  object 
of  the  system  is  the  same  in  every  public  office,  but  the  re- 
quirements of  the  system  will  vary  with  the  number  of  rooms 
and  volumes  in  the  office  and  the  number  of  persons  who  are 
accustomed  to  inspect  the  records.  If  a  correct  and  adequate 
system  is  adopted  and  carried  out  from  day  to  day,  the  cus- 
todian of  the  records  will  not  be  held  liable  for  accidental  or 
malicious  injuries  to  them.  If  the  rule  were  otherwise,  no 
responsible  or  self-respecting  person  would  accept  the  office. 
§  53.  Discretion  of  custodian  continued.  A  statute  authorized 
the  register  of  deeds  to  assign  one  or  more  suitable  persons 
in  his  office  to  have  the  custody  of  the  records  during  office 
hours,  in  w^hose  presence,  under  the  direction  of  the  register, 
all  examinations  of  the  records  should  be  made.  It  was  held 
that  the  fact  that  the  register  permitted  persons,  other  than 
those  employed  by  the  relator,  an  abstract  company,  to  examine 
the  records  without  being  subject  to  the  observation  or  sur- 
veillance of  an  assistant,  did  not  prevent  him  from  compelling 
the  persons  employed  by  the  relator  to  make  their  examinations 
under  such  observation :  and  it  was  further  held  that  the 
question  as  to  whether  or  not  additional  custodians  should  be 
appointed  was  in  a  great  measure  confided  to  his  judgment  and 
discretion  which  when  fairly  exercised  should  not  be  con- 
trolled or  overruled  by  the  court.^  In  two  eases  ^  the  question 
was  whether  an  act,  which  declared  that  the  records  should  be 
open  to  the  inspection  of  any  person  for  any  lawful  purpose,  gave 
to  an  abstracter  the  right  to  make  a  tract  index  to  the  records, 
against  the  objection  of  the  custodian,  and  the  courts  decided 
that  it  did  not.     Unfortunately  the  courts  used  such  language 

■»Pfople  V.    Reilly,   38   Hun    429       Pac.  Rep.  900   (1883).     Corniaok  v. 
(1886).  Wolcott,  37  Kan.  391;  15  Pac.  Rep. 

6  Bean  v.  People,  7  Colo.  200;   2      255   (1887).    See  §§  60,  76,  103. 


DISCRETION.  47 

in  the  opinions  as  to  place  the  will  and  discretion  of  the  officer 
above  the  express  terms  of  the  statute  and  to  hold,  in  effect, 
that  though  the  abstracter  had  the  right  under  the  statute, 
still  the  courts  would  not  revise  the  discretion  of  the  officer  and 
compel  him  by  mandamus  to  permit  the  exercise  of  the  right. 
Such  a  doctrine  unduly  magnifies  the  discretion  of  the  officer, 
which  should  be  subject  to  the  legislative  power  and  to  the 
revisory  power  of  the  courts.  He  must  be  granted  power, 
control  and  discretion  in  the  administration  of  his  office,  but  it 
is  going  too  far  to  say  that  courts  will  not  enforce  rights  under 
a  statute,  merely  because  a  ministerial  officer  has  decided  that 
no  such  rights  exist  and  has  objected  to  such  use  of  the  records 
as  the  petition  in  mandamus  claims.  When  a  member  of  the 
public  appeals  to  the  court  to  determine  the  rights  of  persons 
under  the  law  to  inspect  or  use  the  public  records,  and  the 
officer  in  charge  of  the  records  is  a  party  to  the  proceeding, 
it  is  proper  for  the  court,  in  rendering  its  judgment  or  decree, 
to  leave  to  the  discretion  of  the  officer  all  matters  relating  to 
the  administrative  conduct  of  the  office  and  the  detail  and 
routine  of  his  duties,  but  the  substantive  rights  of  the  parties 
should  be  determined  under  the  law,  and  not  according  to  the 
will  and  wishes  of  the  officer.  These  may  be  one  thing  under 
one  officer  and  another  thing  under  another  officer,  and  they 
are  not  of  the  slightest  weight  or  importance  in  determining 
legal  questions  in  the  courts  of  the  land.  Courts  have  full 
power  to  decide  on  questions  of  the  rights  and  duties  of  county 
officers  and  to  instruct  them  as  to  their  duties,  and  they  should 
not  hesitate  to  do  so.  They  should  state  iu  each  ease  the  rights 
of  the  petitioner  and  the  duties  of  the  officer,  and  should 
compel  the  officer  to  permit  such  use  of  the  records  as  the 
petitioner  is  entitled  to.  The  doctrine  that  an  officer  has  any 
power  over  or  control  of  records,  which  is  beyond  the  power 
of  the  court  to  direct,  or  which  is  outside  of  its  duty  to  revise, 
is  repugnant  to  the  theory  of  a  state  governed  by  laws  which 
are  administered  by  courts.  It  has  been  said  that  many  opin- 
ions of  courts  on  the  subject  of  the  right  to  inspect  public 
records  have  tended  to  befog  the  whole  subject.*^  Perhaps 
these  cases,  among  others,  were  referred  to.     In  Bean  v.  People, 

estate   v.   Grimes,  Nev.         ;       84  Pac.  Eep.  1061;   5  L.  R.  A.    (n. 

s.)   545   (1906).     See  §  85. 


48  CUSTODIAJ^  OF  RECORDS. 

the  court  exercised  its  authority  to  deliver  a  lecture  on  the 
duty  of  the  custodian  to  watch  the  records  while  under  inspec- 
tion by  the  public,  but  declined  to  exercise  its  authority  to 
direct  him  as  to  the  right  of  the  petitioner  to  make  an  in- 
spection. Such  a  direction  has  been  given  in  all  cases  involving 
the  right  of  inspection,  except  in  the  two  cases  under  considera- 
tion. Sometimes  it  has  been  in  favor  of  the  petitioner  and 
sometimes  it  has  been  against  him,  but  the  legal  right  of  the 
petitioner  has  been  passed  on  without  reference  to  the  control 
of  the  discretion  and  will  of  the  officer  by  the  writ  of  mandamus. 
After  the  supreme  courts  of  Colorado  and  Kansas  declined 
to  revise  the  judgment  and  discretion  of  the  county  officers, 
the  legislatures  of  those  states  passed  acts  which  left  them  no 
judgment  or  discretion  in  such  matters.'^ 

When  it  is  said  that  courts  will  not  interfere  with  the  dis- 
cretion of  an  officer  in  the  management  of  his  office,  it  must 
be  understood  to  mean  that,  within  reasonable  limits,  the  court 
M'ill  not  control  the  manner  in  which  he  may  manage  and 
conduct  the  daily  routine  of  his  office.  But  this  rule  does 
not  extend  to  the  discretion  which  he  may  exercise  in  refusing 
or  granting  the  use  of  public  records  to  members  of  the  public. 
The  records  are  in  his  custody,  but  he  holds  them  as  trustee 
for  the  public.  He  may  not  give  away  the  information  con- 
tained in  the  records  to  persons  who  are  not  entitled  to  it,  and 
he  may  not  withhold  such  information  from  those  who  are  en- 
titled to  it.  He  must  act  according  to  his  best  judgment  in  all 
matters  in  which  the  courts  have  not  instructed  him  as  to  his 
duty,  but  his  judgment  as  to  the  proper  or  improper  use  of 
such  records  under  the  law  is  subject  to  judicial  regulation  and 
control.  In  this  sense  it  may  be  said  that  the  public  records  are 
under  the  control  of  the  officer  and  of  the  courts.  Clerks  of 
courts  have  asked  for  instructions  as  to  their  rights  and  duties 
concerning  court  records,  and  courts  have  instructed  them  on 
ex  parte  petitions.*  An  officer  appointed  by  the  court  to  restore 
certain  records  was  instructed  as  to  his  rights  on  his  ex  parte 
petition."     But  it  is  doubtful  whether  the  court  will  entertain 

7  See  §§  60,  70,  103.  re    Chambers,    44    Fed.    Rep.    786 

8  In    re    Caswell,    18    R.    I.    835;        (1891). 

27  L.  R.  A.  82 ;   29  Atl.  Rep.  259 ;  »  Kx   parte   Calhoun,    87   Ga.   359 

49  Am.  St.   Rep.   8U    (1893).      In       (1891). 


DISCRETION.  ■     49 

siich  a  petition  on  behalf  of  a  county  officer  not  primarily  sub- 
ject to  its  orders,  in  the  absence  of  express  statutory  authority. 
The  rights  of  members  of  the  public  to  the  use  of  public  prop- 
erty should  be  passed  on  by  the  courts  on  every  proper  occasion, 
and,  where  it  can  be  avoided,  they  should  not  be  left  to  the  de- 
termination of  a  ministerial  officer,  who  may  be  mulct  in  heavy 
damages  for  a  wrong  decision ;  and  in  all  cases,  when  the  officer 
is  before  the  court  and  subject  to  its  jurisdiction,  the  court 
should  instruct  him  fully  as  to  the  rights  claimed  by  the  party 
or  parties  to  the  suit  to  use  and  inspect  the  records,  and  as  to 
his  duty  in  the  premises.  It  has  been  the  practice  of  courts  to 
set  forth  the  duties  of  the  officer  and  the  rights  of  the  public 
concerning  inspection  of  records,  whether  the  rights  claimed  by 
the  petitioner  were  sustained  or  denied.^" 

§  54.  Discretion  of  custodian  revised  by  courts.  An  inspec- 
tion of  the  public  records  and  documents  cannot  be  denied, 
merely  because  the  person  applying  for  it  has  been  guilty  of 
some  past  impropriety  of  conduct  as  to  matters  to  which  such 
writings  may  refer,  or  because  it  is  apprehended  that  the  in- 
formation obtained  will  be  employed  in  litigation  against  the 
state,  county  or  municipality.^^ 

§  55.  Right  of  custodian  to  inquire  into  purpose  of  examina- 
tion. Where  the  general  law  prevails,  which  requires  an  interest 
in  the  records  to  support  the  right  of  inspection,  or  where  the 
statutes  declare  that  the  records  shall  be  open  to  the  inspection 
of  any  person  for  any  lawful  purpose,  it  seems  logical  to  hold 
that  the  officer  in  charge  of  records  has  the  right  to  inquire  into 
the  purpose  of  an  intended  examination.  Accordingly  it  has 
been  held  that  an  officer  has  such  an  interest  in  the  records  as 
entitles  him  to  inquire  into  the  purpose  of  a  proposed  exami- 
nation and  to  refuse  an  inspection  of  them  when  in  his  best  judg- 
ment such  inspection  is  not  warranted  by  law.^-     In  considering 

10  Webber   v.    Townley,   43    Mich.  Cubrey,    84   Minn.   439;    87    N,   W. 

534;    5   N.    W.    Hep.    1)71;    38   Am.  Rep.  1126  (1901).    People  v.  Reilly, 

Rep.  213    (1880).     State  v.  Grimes,  38   Hun    429    (1886). 

Nev.  ;  84  Pac.  Rep.  lOGl;  n  Brewer  v.  Watson,  71  Ala. 
5  L.  R.  A.  (n.  s.)  545  (1906).  299;  46  Am.  Rep.  318  (1882).  Pec- 
Buck  V.  Collins,  51  Ga.  391;  21  pie  v.  Throop,  12  ^Vend.  183 
Am.  Rep.  236  (1874).  Payne  v.  (1834).  See  note  to  §  71. 
Staunton,  55  W.  Va.  232;  4G  S.  i- Payne  v.  Staunton,  55  W.  Va. 
E.  Rep.  727  (1904).  State  v.  Mc-  202;  46  S.  E,  Rep.  727  (1904). 
4 


50  CUSTODIAN  OF  EECORDS. 

this  subject  it  was  said:  "The  clork  is  the  representative  of 
the  state,  the  custodiau  of  and  responsible  for  the  safekeeping 
of  the  records,  and  has  the  clear  right  to  determine  the  purpose 
for  which  inspection  of  such  records  is  demanded.  That  right 
of  determination  becomes  a  duty,  and  he  is  bound  to  exercise  it 
impartially.  For  any  wilful  or  intentional  misuse  of  the  power 
he  would  be  liable  as  for  any  other  act  of  misconduct  in  office. 
The  statutes  clearly  limit  the  right  of  inspection,  and  some  person 
other  than  the  person  wishing  to  examine  them  must  be  clothed 
with  authority  to  determine  the  purpose  of  an  intended  inspec- 
tion. The  clerk,  as  the  custodian  of  the  records,  is  the  proper 
person  to  perform  that  duty. ' '  ^^  But  in  a  case  where  the  right 
to  search  the  judgment  records  was  under  consideration  the 
court  said:  "If  the  clerk  was  entitled  to  the  fee  of  15  cents  for 
each  name  searched  for  by  the  citizen,  then  he  would  have  the 
right  to  compel  the  citizen  to  disclose  the  number  of  names  he 
looked  for,  if  not  the  names  themselves.  The  law  has  not  in- 
vested the  clerk  with  any  such  inquisitional  powers.  To  compel 
the  citizen  to  disclose  such  facts  might  imperil  important  busi- 
ness interests,  or  injuriously  affect  the  credit  of  the  persons 
named."  "  It  is  rather  fanciful  to  suggest  that  an  examination 
for  judgments  against  a  person  may  imperil  his  business  inter- 
ests or  injuriously  affect  his  credit.  The  existence  of  judg- 
ments against  him  will  undoubtedly  be  injurious,  but  the  nota- 
tion of  the  judgments  by  an  examiner  with  the  knowledge  of 
the  clerk  who  is  supposed  to  have  entered  them  on  the  records 
•will  not  of  itself  tend  to  injure  his  credit  or  his  interests.  In 
this  country  there  is  a  prevailing  and  perhaps  an  exaggerated 
hostility  to  official  inquiry  into  the  ordinary  affairs  of  business, 
end  this  is  shown  even  in  judicial  decisions,  as  in  the  cases  just 
£ited.  But  the  power  to  determine  whether  one  is  entitled  to 
examine  the  records  must  reside  somewhere,  and  it  is  reasonable 
to  hold  that,  in  the  first  instance,  it  resides  in  the  officer  in 

See  Brewer  v.  Watson,  71  Ala.  299;  v.   Eichstaedt,   G9   Wis.   5.38;    35  N. 

4G  Am.  Rep.  318    (1882).  W.   Rep.  30    (1887).      See  also  dis- 

13  State    V.    McCubrey,    84    !Minn.  sonting  opinion  in  Payne  v.  Staun- 

439;  87  N.  W.  Rep.  112G    (1901).  ton,  55  W.  Va.  202;   46  S.  E.  Rep. 

1*  In   re  Chambers,  44   Fed.    Rep.  727      (1904).        Commonwealth     v. 

786    (1891),      See  Burton   v.  Tuite,  Walton,     6     Pa.     Dist.     Rep.     287 

78  Mich.  363;  44  X.  W.  Rep.  282;  (1895), 
7   h.   JR.    A.-    73     (1889).       Hanson 


EULES  AND  REGULATIONS.  51 

charge,  subject  to  the  revisory  powers  of  the  courts.  The  use 
and  abuse  of  this  power  may  safely  be  left  to  the  discretion  of 
the  officers  themselves,  since  they  are  subject  to  the  courts  in 
each  instance  where  the  courts  are  appealed  to,  and  are  answer- 
able to  the  people  for  their  general  official  conduct. 

§  56.  Reasonable  rules  and  regulations.  The  officer  in  charge 
of  the  public  records  and  documents  is  the  lawful  custodian  of 
them,  and  he  is  responsible  for  the  preservation  and  safekeeping 
of  them.  The  exercise  of  the  right  of  access  to  them  must  be 
subject  to  the  responsibilities  and  duties  assumed  by  him  on 
taking  his  official  oath  and  giving  his  official  bond.  He  has  the 
power  and  it  is  his  duty  to  prescribe  such  rules  and  regula- 
tions as  will  preserve  them  from  loss  and  mutilation,  but 
such  rules  and  regulations  should  be  general  and  reason- 
able and  should  be  made  with  a  view  to  the  proper  use  of 
them  by  the  public,  rather  than  to  his  convenience  and  pleasure. 
They  should  be  framed  on  the  principle  that  the  primary  object 
of  such  records  is  to  make  a  depository  of  information  to  be 
searched  by  all  proper  persons,  and  while  providing  amply  for 
care  and  preservation,  they  should  permit  inspections  to  be  made 
without  unnecessary  interference  or  delay.  A  rule  established 
by  the  recorder  and  posted  in  conspicuous  places  in  his  office 
provided  that  persons  desiring  to  examine  the  records  of  the 
office  for  the  purpose  of  making  abstracts  would  be  permitted  to 
do  so  on  any  day  when  the  office  was  required  to  be  kept  open, 
between  the  hours  of  nine  and  twelve  in  the  forenoon  and  one 
and  four  in  the  afternoon ;  provided  that  on  days  when  the  county 
commissioners  were  in  session  in  the  office,  such  examinations 
might  be  made  only  between  the  hours  of  nine  and  ten  in  the 
forenoon  and  four  and  five  in  the  afternoon.  The  county  clerk 
and  recorder  was  under  the  law  also  the  clerk  of  the  board  of 
county  commissioners,  and  during  a  great  part  of  his  time  was 
without  an  assistant  in  his  office.  It  was  held  that  under  the 
circumstances  the  rule  was  reasonable.^^  The  restriction  of  the 
number  of  employees  of  an  abstract  company  to  three  persons  in 
one  of  the  divisions  of  the  register's  office  on  special  work  was 
held  to  be  a  reasonable  regulation  under  the  circumstances  of 

15  Upton  V.  Catlin,  17  Colo.  546;  31  Pac.  Rep.  172;  17  L.  R.  A. 
282    (1892). 


52  CUSTODIAN  OF  RECORDS. 

the  case  as  disclosed  by  the  record.^*'  The  powers  of  the  cus- 
todian over  the  records  are  such  as  are  necessary  for  their  pro- 
tection and  preservation.  To  that  end  he  may  make  and  en- 
force proper  regulations  consistent  with  the  right  of  the  public  to 
Tise  them,^^  The  statutes  of  some  states  provide  that  the  person 
making  a  search  of  the  public  records  and  documents  shall  not 
use  pen  and  ink  in  making  memoranda  and  copies.  Where  there 
is  no  such  provision  in  the  law,  it  is  proper  for  the  custodian  of 
the  records  to  make  it  a  rule  of  his  office  that  memoranda  and 
copies  may  be  made  only  in  pencil  and  that  pen  and  ink  shall 
not  be  used  in  abstracting  the  records. 

§  57.  Duty  of  custodian  to  lawyer  or  abstracter  who  is  agent 
for  one  interested  in  the  records.  Where  there  is  no  statute 
governing  the  right  to  examine  public  records,  the  general  law 
on  the  subject  is  in  force,  and  under  the  general  law  a  person 
who  is  interested  in  them,  presently  or  prospectively,  is  entitled 
to  examine  them  to  the  full  extent  of  his  interest,  subject  to 
reasonable  rules  and  regulations.^^  They  are  not  kept  for  the 
convenience  or  gain  of  the  officer  in  charge.  They  are  public 
property  designed  by  law  for  search  by  anyone  who  may  be  in- 
terested in  them.  Such  a  person  may  not  only  examine  them  in 
person,  but  he  may  also  employ  an  agent  to  search  them  for  him. 
He  will  naturally  employ  as  his  agent  some  one  who  has  some 
special  knowledge  and  experience  in  making  searches,  and  will 
select  a  lawyer  or  an  abstracter.  From  very  early  times  in  this 
country  lawyers  have  been  accustomed  to  examine  public  records 
in  matters  relating  to  the  interests  of  their  clients,^"  but  in  recent 
years  the  professional  abstracter  has  superseded  him,  especially 
in  the  more  populous  counties.  Almost  all  examinations  of 
records  are  made  by  abstracters  as  agents  of  persons  interested 
in  current  and  pending  transactions,  and,  as  these  transactions 
increase  in  number,  the  niunber  of  abstracters  and  their  assist- 
ants will  increase  in  performing  the  necessary  work  in  the  county 

i«  People   V,    Richards,   99    N.    Y.  v.  Collins,  51  Ga.  391;  21  Am.  Rep. 

620;    1  N.  E.    Rep.   258    (1885).  236    (1874).      State   v.   Grimes, 

"Lum  V.  McCarthy,  39  N.  J.  L.  Ncv.          ;    84    Pac.    Rep.    1061;    5 

287    (1877).  L.     R.     A.     (n.     s.)      545     (1906). 

!'<§  87  et  spq.  Eurton  v.  Tuite,   78  Mich.  363;   44 

i»  Newton  V.  Fisher,  98  X.  C.  20;  N.    W.    Rep.    282;    7    L.    R.    A.    73 

3   S.    E.    Rep.    822     (1887).       Buck  (1889). 


DUTY  TO  SEARCHERS.  53 

offices.  An  abstracter  and  his  assistants  engaged  in  making 
searches  for  interested  persons  is  not  to  be  regarded  as  merely 
conducting  his  own  business  for  hire.  While  he  is  conducting 
his  business  he  is  not  dealing  in  any  thing  or  commodity,  but  is 
merely  making  an  examination  and  report  on  the  state  of  the 
records,  and  for  this  purpose  he  is  subrogated  to  the  rights  of 
his  employers  and  is  in  the  office  in  his  representative  capacity. 
If,  as  such  agent,  he  is  deprived  of  any  rights,  his  principal  may 
recover  from  the  officer.-*^  As  the  representatives  of  interested 
persons,  abstracters  are  entitled  to  work  in  such  numbers  and 
with  such  facilities  as  are  necessary  to  perform  the  work  in 
which  they  are  employed.  It  is  the  duty  of  the  officer  in  charge 
to  call  upon  the  board  of  county  commissioners,  or  other  control- 
ling authority,  to  supply  ample  room,  desks,  light,  heat  and  as- 
sistants to  accommodate  all  interested  persons  and  their  agents 
in  making  searches.  It  is  his  duty  in  a  general  way  to  do  all  in 
his  power  to  enable  interested  persons  and  their  agents  to  ob- 
tain all  necessary  and  needful  information  contained  in  rec- 
ords which  are  constructive  notice,  and  which  they  must  search 
at  their  peril.  On  the  other  hand,  it  is  his  duty  to  establish  such 
general  rules  as  will  protect  the  records  and  permit  the  due  ad- 
ministration of  the  office,  and  to  see  that  they  are  duly  observed 
by  all  members  of  the  public."^ 

§  58.  Duty  of  custodian  to  abstracter  making  indices.  Where 
under  statutory  provisions  an  abstracter  has  the  right  of  free  in- 
spection of  the  records,  it  is  the  duty  of  the  custodian  to  permit 
such  inspection,  examination,  taking  of  memoranda  and  copy- 
ing of  records  as  the  abstracter  may  be  entitled  to,  and  to  permit 
the  work  to  be  done  by  the  abstracter  and  such  a  number  of  his 
employees  as  in  the  exercise  of  the  custodian's  unbiased  judg- 
ment and  discretion  may  be  permitted  at  the  same  time  to  pur- 
sue their  searches  in  his  office,  without  interfering  with  his  official 
duties  and  without  depriving  other  persons  equally  entitled  to 
make  such  searches  of  the  convenient  opportunity  for  so  doing, 
and  under  the  restrictions  and  regulations  imposed  by  the  lav/ 
governing  the  duties  of  his  custodianship.--     The  rights  of  an 

20Lum  V.  McCarthy,  39  N.  J.  L.  22  People  v.   Reilly,   38   Hun    429 

287    (1877).  (1886);     High     on    Extraordinary 

21  Mechem  on  Offices  and  Officers,  Remedies,  §  43. 
§§  738,  739.     See  §  124. 


54  CUSTODIAN  OF  RECORDS. 

abstracter  of  titles  to  access  to  the  public  records  to  enable  him  to 
make  an  index  to  them  for  use  in  his  business  do  not  depend  ou 
the  privileges  which  the  custodian  may  choose  to  pennit  others  to 
enjoy,  but  they  are  measured  by  the  law.  They  cannot  be  dimin- 
ished for  the  beliefit  of  others,  nor  can  they  be  increased  by  rea- 
son of  indulgence  to  others.  And  one  whose  business  requires 
nuich  examination  has  no  greater  rights  than  one  whose  in- 
terests require  but  little.*'  Where  abstracters  are  entitled  under 
the  law  to  examine  and  copy  the  records,  they  should  be  treated 
by  the  custodian  in  an  impartial  way  and  as  a  part  of  the  public. 
The  fact  that  an  abstracter  of  titles  may  use  indiscriminately 
the  information  shown  by  the  certificate  of  an  officer,  as  a  basis 
for  making  certificates  of  his  own  in  the  conduct  of  his  business, 
does  not  concern  the  officer.  A  public  officer  has  no  such  interest 
in  the  records  intrusted  to  his  care  as  will  justify  him  in  refusing 
to  issue  to  an  abstracter  a  certificate  which  the  statute  requires 
him  to  give  to  any  person  requesting  it.-* 

§  59.  Custodian's  duty  arises  out  of  the  nature  of  public 
records.  The  conception  of  the  duty  of  an  officer  to  provide 
all  necessary  and  proper  facilities  for  an  examination  of  the 
records  in  his  office  is  not  new.  In  1843,  in  discussing  the  duties 
of  a  recorder,  it  was  said:  "All  that  a  recorder  is  required  to 
do  in  the  premises,  therefore,  is  to  furnish  facilities  for  an  ex- 
amination of  the  books  in  his  office."  ^^  It  is  not  the  suggestion 
of  interested  persons  who  seek  by  means  of  it  to  reap  some  special 
advantage.  It  arises  out  of  the  nature  of  public  records.  The 
design  in  the  establishment  of  such  records  is  the  formation  of 
depositories  of  information,  which  may  be  searched  by  those  who 
are  interested  or  who  are  entitled  under  the  statutes  to  search 
them,  their  agents  and  attorneys,  and  the  right  of  such  persons 
to  enjoy  proper  facilities  for  searching  them  and  taking  extracts 
and  copies  from  them  is  correlative  to  the  duty  of  the  officer  in 
charge  of  them  to  furnish  those  facilities.^" 

§  60.     Payment  of  money  for  privilege  of  making  indices.     In 

=•-!  Burton  v.   Hpynolds,   102  Mich.  100   N.    W.   Rep.    382    (1004).      In 

5');     60    N.    W.    Rep.    452     (1804).  re    Chambers,    44    Fed.     Rep.     786 

See    also    PoojjIo    v.    Roilly,    supra.  (1801). 

Bell    V.   Title   Co.,    180    U.    R.    131;  2',  L„.sk     v.     Carlin,     5     III.     305 

23   Sup.  Ct.  Rep.  .569    (1000).  (1843). 

-'♦State   V.   Scow,    93    Minn.    11;  20  See  §  84  et  seq. 


RECIPROCAL  DUTIES,  55 

those  states  in  which  it  is  held  that  an  abstracter  may  not  enforce 
by  mandamus  his  right  to  make  an  index  to  the  records,  under  a 
statute  giving  the  right  of  search  to  "any  person,"  ^^  the  cus- 
todian of  the  records  and  the  abstracter  are  placed  in  a  peculiar 
and  embarrassing  position.  The  officer  may  if  he  chooses  recog- 
nize the  abstracter  as  one  of  the  general  public  and  permit  him 
to  make  the  index,  or  he  may  deny  that  the  abstracter  has  the 
right  and  effectually  prevent  him  from  making  the  index.  This, 
in  effect,  confers  upon  a  mere  ministerial  officer  an  arbitrary 
power  over  the  use  which  may  be  made  of  the  records,  tends  to 
produce  bad  feeling  over  the  administration  of  the  office  and 
opens  a  way  for  improper  influences  over  the  officer  in  charge. 
Indeed  it  was  said  in  one  case :  ' '  There  is  no  law  to  prevent  the 
clerk  aiding  them  (abstracters  desiring  to  make  an  index  to  the 
records)  if  he  chooses  so  to  do,  either  gratis  or  for  a  stipulated 
compensation,  provided  he  does  not  neglect  his  official  duties. 
But  the  court  should  not,  by  mandamus,  compel  him  to  do  so 
against  his  will.  "-^  It  was,  perhaps,  this  bald  statement  of 
the  condition  of  the  law,  brought  about  by  the  effect  of  this  de- 
cision, holding  out  a  temptation  to  the  officer  to  take  compensa- 
tion not  provided  for  in  the  fee-bill,  which  induced  the  legisla- 
ture at  its  next  session  to  pass  an  act  expressly  giving  abstracters 
the  right  to  make  tract  indices  and  providing  for  a  heavy  penalty 
if  the  officer  should  refuse  to  permit  an  abstracter  to  make  an  in- 
dex to  the  records.  A  contract  between  an  abstract  maker  and 
an  official  custodian  of  public  records  whereby  it  is  agreed  that 
the  abstracter  may  make  a  set  of  abstract  books  from  the 
records,  and  that  the  officer  will,  so  far  as  he  can,  exclude 
others  from  using  the  records  for  the  purpose  of  making  ab- 
stracts, and  will  use  his  influence  to  prevent  and  hinder  the  free 
use  of  the  records,  is  a  reprehensible  compact,  tending  to  the  sub- 
version of  official  duty  and  inviting  official  corruption.-^ 

§  61.  Reciprocal  duties.  The  custodian  of  public  records  has 
rights  and  duties  which  must  be  respected.  Persons  entitled  to 
the  use  and  inspection  of  public  records  also  have  rights  and 
duties.  They  are  subject  to  variation  under  conditions  which 
arise  from  day  to  day  in  the  conduct  of  the  business  of  a  public 

27  §§  76,  103.  2»  Parsons   v.    Randolph,    21    Mo. 

28  Bean  v.  People,  7  Colo.  200;  2      App.  353   (1886). 
Pac.  Rep.  909    (1883).     See  §  53. 


56  CUSTODIAN  OF  RECORDS. 

office.  On  every  occasion,  each  and  every  one  must  act  reason- 
ably and  with  proper  regard  for  the  rights  and  duties  of  the 
others.  As  the  circumstances  vary,  the  conduct  of  each  person 
must  vary,  so  that  the  rule  of  reasonable  action  may  be  secured 
and  the  rights  of  each  person  may  be  respected.^"  If  interested 
persons  making  searches,  or  an  abstracter  or  the  employees  of  an 
abstract  company  making  searches  in  an  office,  are  insolent  to 
the  custodian  of  the  records,  he  has  a  right  to  exclude  them  from 
his  office  on  that  account.  Persons  who  frequent  public  offices  to 
make  examinations  and  acquire  information  are  required  to  eon- 
duct  themselves  in  a  civil  and  orderly  manner.^^ 

§  62.  Limitations  on  the  right  of  inspection.  From  what  has 
been  said  about  the  rights  and  duties  of  custodians  of  public  rec- 
ords it  is  evident  that  even  where  the  right  of  free  inspection  and 
examination  of  such  records  is  given  by  statute  to  the  public, 
there  are  certain  restrictions  on  that  right  which  must  govern 
those  who  search  them.  The  limitations  of  the  right  of  inspec- 
tion of  public  records  and  documents  obviouslj''  are  that  the  per- 
son making  the  search  must  obey  the  reasonable  rules  and  regu- 
lations established  by  the  custodian  for  the  conduct  of  the  busi- 
ness of  the  office  and  the  preservation  of  the  records;  that  he 
must  conduct  himself  in  a  reasonable  and  orderly  manner,  and 
exercise  his  right  at  reasonable  houre  and  times;  that  he  must 
not  obstruct  the  officer  in  charge  and  his  assistants  in  the  per- 
formance of  their  official  duties,  and  that  he  must  not  interfere 
with  the  equal  right  of  another  person  to  such  inspection  and  ex- 
amination. He  must  not  withhold  the  records  from  the  officer 
or  his  assistants  when  they  are  needed  for  the  performance  of 
an  official  function,  and  he  is  not  entitled  to  examine  a  record  or 
document  which  is  in  use  by  the  officer  or  an  assistant,  or  by 
another  searcher.^^ 

§  63.  Action  for  damages  for  refusal  to  permit  inspection  of 
records.     An  action  for  damages  lies  against  a  ministerial  officer 

30 Diamond  Match  Co.  v.  Powers,  (1900).    Randolph  v.  State,  82  Ala. 

51   Mich.    145;    16  N.  W.   Rep.   314  .'J^T ;   2  So.  Rep,  714;   60  Am.  Rep, 

(1883).  761     (1886);    People   v.    Reilly,    38 

31  People   V,   Reilly,   38   Tlun    429  TTun    429    (ISSfi);    Day  v.   Button. 

(1886).  96    IMich.    600;    .56    N.    W,    Rep.    3 

32P.P11   V.  Title  Company.    189  U.  (1893)  ;   State  v.  MeMillnn.  49  Fla. 

S.     131;     23    Sup.     Ct.     Rep.     509  243;  38  So.  Rep.  660    (1905). 


DAMAGES  FOR  REFUSAL.  57 

having  custody  of  public  records,  on  account  of  his  refusal  to 
permit  an  interested  person  or  his  attorney  to  inspect  the  records. 
Nominal  or  compensatory  damages  may  be  recovered  without 
proof  of  malice  or  an  intent  to  injure  on  his  part,  but  if  it  is 
alleged  that  the  refusal  on  the  part  of  the  officer  was  malicious 
and  with  intent  to  injure  the  plaintiff,  proof  of  such  malice  and 
intent  is  necessary  to  authorize  a  recovery  of  vindictive  dam- 
ages.^^  The  good  faith  of  the  officer  in  refusing  the  inspection 
may  relieve  him  from  the  imputation  of  malice  and  acquit  him 
of  liability  for  vindictive  or  exemplary  damages,  but  it  cannot 
relieve  him  of  liability  for  actual  or  compensatory  damages.'* 
Where  there  is  a  right  on  one  side  to  copies  of  the  records  and  a 
corresponding  duty  imposed  on  the  custodian  of  the  records  to 
furnish  such  copies,  a  refusal  to  perform  such  duty  on  the  rea- 
sonable request  of  the  party  entitled  to  demand  it,  will  subject 
the  custodian  to  an  action  for  damages.  In  such  a  case,  the 
plaintiff  is  entitled  to  a  verdict  for  nominal  damages  where  he 
has  shown  a  demand  for  the  copies,  with  tender  of  fees,  and  a 
refusal  to  comply  with  the  demand.  The  defendant,  however, 
may  show  that  the  demand  was  not  properly  made,  as  for  in- 
stance, that  it  was  accompanied  by  insulting  and  vulgar  language, 
or  that  the  plaintiff  was  not  entitled  to  such  copies  as  he  de- 
manded.^' 

In  view  of  the  fact  that  a  ministerial  officer  in  charge  of  pub- 
lic records  may  be  called  upon  at  any  time  to  pass  on  the  rights 
of  a  member  of  the  public  to  use  and  inspect  such  records  under 
the  general  law  or  under  the  statutory  laws  of  the  state,  and  may 
be  made  to  respond  in  compensatory  damages  for  a  wrong  de- 
cision on  those  rights,  it  is  apparent  that  it  is  the  duty  of  the 
court,  whenever  a  case  involving  the  right  to  use  and  inspect  such 
records  is  brought  before  it,  to  interpret  the  law  carefully  and 
fully  for  the  guidance  of  such  officer,  and  for  the  determination 
of  the  rights  of  the  public  to  such  use  and  inspection. 

§  64.  Damages  for  ejectment  from  a  public  office.  Every  per- 
son has  a  right  to  enter  and  remain  in  a  public  office,  such  as 

33  Brewer  v.  Watson,  65  Ala.  88  sor,  24  Vt.  327  (1852).  Lyman  v. 
(1880).  Edgarton,  29  Vt.  305   (1857). 

34  Brewer  v.  Watson.  71  Ala.  299;  35  Boyden  v.  Burke,  14  How.  (U. 
46   Am.   Rep.   318    (1882),      Action  S.)    576    (1852). 

against  officer,  see  Hunter  v.  Wind- 


58  CUSTODIAN  OF  RECORDS. 

the  office  of  the  clerk  of  a  court,  even  from  motives  of  curiosity 
merely,  during  such  hours  as  the  same  may  be  open  for  the 
transaction  of  public  business,  so  long  as  he  conducts  himself 
properly  and  in  no  way  interferes  with  or  impedes  the  business 
being  transacted.^** 

soO'Hara    v.    King,    52    111.    303(1869). 


CHAPTER  VII 

MANDAMUS. 

§  65.  Proper  remedy.  "Where  a  person  has  been  refused  ac- 
cess to  the  public  records,  a  petition  for  a  peremptory  writ  of 
mandamus  against  the  custodian  of  the  records  is  a  proper 
remedy.  It  is  the  usual  remedy  which  has  been  resorted  to  in 
order  to  determine  whether  the  right  of  access  to  the  records  ex- 
ists. The  writ  of  mandamus  is  not  demandable  as  a  matter  of 
right,  but  is  awarded  in  the  discretion  of  the  court.  "WHiile  it  is 
true  that  in  many  cases  the  court  will  exercise  discretion  in  grant- 
ing the  writ,  it  wall  not  refuse  it  where  the  relator  has  a  clear 
legal  right,  a  substantial  matter  is  involved  and  there  is  no  other 
adequate  remedy. 

§  66.  Clear  legal  right,  free  from  doubt  or  exception.  In  the 
absence  of  statutory  provisions  giving  the  right  of  access  to  the 
records,  it  has  been  uniformly  held  that  the  relator  must  show 
some  interest,  present  or  prospective,  in  the  particular  records 
which  he  desires  to  examine.  But  the  necessity  of  interest  has 
been  done  away  with  by  the  statutes  of  the  federal  government 
and  of  many  states,  and  in  these  jurisdictions  no  special  interest 
in  the  records  need  be  averred  in  the  petition  or  shown  at  the 
trial.  Where  three  employees  of  a  title  company  were  permitted 
to  work  on  certain  records  in  one  of  the  departments  of  the  office 
of  the  register  of  deeds,  and  he  objected  to  the  bringing  in  of  a 
fourth  man,  on  the  ground  that  it  would  seriously  interfere  with 
the  current  business  of  that  department,  the  trial  court  denied  a 
peremptory  writ,  and  on  appeal  it  was  held  that  relator's  right 
to  have  greater  facilities  and  privileges  in  the  department  was 
not  so  clear  that  the  appellate  court  would  reverse  the  decision 
of  the  court  below  in  denying  it.^  An  abstract  maker  filed  a 
petition  to  compel  the  county  clerk  to  permit  an  inspection  of  the 
files  in  his  office.     In  the  petition  he  stated  that  he  was  engaged 

1  People    V.    Richards,    99    N.    Y.    620;   1  N.  E.  Rep.  258    (1885). 

59 


60  MANDAMUS. 

iu  the  business  of  making  abstracts  of  title  to  land,  and  was  em- 
ployed to  make  an  abstract  of  certain  premises,  and  that — "in 
order  to  properly  complete  his  work,  it  became  necessary  to  see 
and  copy  the  proceedings  in  file  No.  14,082  in  the  circuit  court 
for  the  county  of  Wayne,  in  chancery,  being  a  suit  brought  by 
"William  Shattuck  and  others  against  James  C.  McCormick  for 
the  purpose  of  enforcing  specific  performance  of  a  land  contract, 
*  *  *  and  that  the  respondent,  the  county  clerk,  refused  to 
allow  him  to  inspect  and  copy  caid  file."  The  petition  prayed 
that  respondent  be  compelled  by  mandamus  to  permit  the  re- 
lator to  "inspect,  examine  and  copy  from  file  No.  14,082,  and 
from  any  and  all  other  files  in  his  office."  The  court,  in  passing 
on  the  questions  involved,  said:  "The  law  provides  for  record- 
ing the  evidences  of  title  to  land  in  the  register's  office,  and  all 
that  is  recorded  therein  is  constructive  notice  to  all  persons. 
Taxes  and  proceedings  on  the  part  of  the  public  must  be  taken 
notice  of  by  all  interested,  though  the  register's  office  is  not  the 
place  where  the  records  pertaining  thereto  are  to  be  found.  In 
several  cases  we  have  intimated  that  the  general  public  might 
have  a  right,  under  proper  restrictions,  to  the  information  con- 
tained in  public  offices  upon  these  subjects.  *  *  *  "We  do  not 
find  it  necessary  in  this  case  to  go  so  far  as  to  say  that  one  in-, 
terested  in  the  land  title,  where  he  has  notice  of  the  pendency 
of  proceedings  affecting  such  title,  either  actual  or  constructive, 
by  reason  of  the  filing  of  lis  pendens  or  other  papers  constituting 
such  notice,  shall  not  be  allowed,  either  personally  or  by  proper 
representative,  e.  g.,  an  attorney  of  the  court,  to  inspect,  and 
make  necessary  memoranda  for  his  use.  Such  right  might  seem 
necessary  and  to  be  contemplated  by  the  law  which  subjects  him 
to  the  consequences  of  notice.  When  such  case  shall  arise,  it  v;ill 
receive  consideration.  The  record  in  this  case  shows  nothing  of 
the  kind.  On  the  contrary,  relator's  petition  negatives  construc- 
tive notice,  and  does  not  assert  actual  notice.  It  does  not  state 
that  the  suit  involves,  or  is  in  any  way  connected  with,  the  land 
that  relator  was  employed  to  abstract,  by  way  of  contract  or 
otherwise,  or  that  it  is  necessary  to  the  interests  of  his  employer 
that  he  be  allowed  to  inspect  this  record.  It  does  state  that, 
'in  order  to  properly  complete  his  work,  it  became  necessary 
to  see  and  copy  the  proceedings';  and  whatever  may  be  meant 


CLEAR  LEGAL   RIGHT.  61 

by  that,  it  falls  short  of  stating  a  necessity  that  shows  a  legal 
right  to  inspect  the  record."  - 

§  67.  Clear  legal  right,  continued.  Patent  indices  to  judg- 
ment dockets  kept  by  the  clerk,  paid  for  out  of  public  funds, 
not  required  by  law  to  be  kept,  which  may  be  discontinued  at 
any  time  without  violence  to  the  clerk's  official  bond,  are  in  a 
sense  public  records,  but  mandamus  will  not  lie  to  compel  the 
clerk  to  permit  such  indices  to  be  used  in  making  searches  by 
the  public,  when  there  are  separate  indices  to  each  judgment 
docket.  In  such  a  case  no  such  clear  legal  right  of  the  relator 
has  been  violated  by  the  refusal  of  the  use  of  them  as  will  be 
enforced  by  mandamus.^  Mandamus  will  not  lie  to  compel  a 
county  clerk,  who,  for  a  compensation  paid  by  relator's  com- 
petitors, employs  a  clerk  at  his  own  expense  to  superintend  their 
use  of  the  files  and  records  in  the  office  for  the  purpose  of  making 
abstracts  of  title,  to  grant  the  same  facilities  to  the  relator  with- 
out compensation,  it  appearing  that  the  clerk  is  not  legally 
bound  to  furnish  such  increased  facilities  and  that  the  furnish- 
ing of  them  to  his  competitors  does  not  abridge  the  rights  to 
which  the  relator  is  legally  entitled.* 

§  68.  Suppression  of  files  under  order  of  court.  Parties  to  a 
suit  in  court,  under  the  direction  of  the  court,  may  lawfully 
withhold  and  suppress  the  records  and  papers  in  the  case,  and 
may  prevent  any  statement  in  regard  to  it  being  made  public 
until  they  are  made  public  by  the  consent  of  the  parties  or  by 
proceedings  in  open  court.  Where  the  sole  object  of  the  re- 
lator is  to  obtain  for  publication  information  concerning  a  suit 
which  has  just  been  commenced  and  which  the  parties  have  ob- 
tained from  the  court  permission  to  suppress  for  the  time  being, 
the  discretionary  writ  of  mandamus  will  not  be  granted,  even 
though  the  relator  has  a  strict  legal  right  to  the  information 
sought.^ 

2  Burton  v.  Reynolds,  110  Mich.  Wash.  638;  79  Pac.  Rep.  306 
354;    68    N.    W.    Rep.    217    (1896).       (1905). 

See  Diamond  Match  Co.  v.  Powers,  *  Burton   v.   Reynolds,    102  Mich. 

51   Mich.   145;    16  N,  W.  Rep.   314  55;   60  N.  W.  Rep.  452    (1894). 

(1883).  sSchmedding    v.    May,    85    Mich. 

3  Fidelity  Trust  Co.  v.  Clerk,  65  1 ;  48  N.  W.  Rep.  201  (1891).  See 
N.  J.  L.  495;  47  Atl.  Rep.  451  Park  v.  Free  Press  Co.,  72  Mich. 
(1900).       See    State    v.    Reed,    36  560;    40    N.    W.    Rep.    73     (1888). 


62 


MANDAMUS. 


§  69,  Clear  legal  right,  proper  foundation  for  action.  In 
order  to  entitle  a  person  to  resort  to  the  court  by  petition  for  a 
writ  of  mandamus  to  compel  the  custodian  of  public  records  to 
permit  him  to  inspect  them,  he  must  show  that  he  has  made  a 
projier  demand  for  such  inspection,  at  a  proper  time  and  place 
and  for  a  proper  purpose.  The  demand  should  be  made  during 
office  hours  at  the  office  of  the  custodian.  It  is  at  such  a  time 
and  place  that  the  custodian  is  acting  in  his  official  capacity, 
and  it  is  then  and  there  his  duty  either  to  grant  or  to  deny  the 
request.  It  should  be  made  in  a  respectful  manner.  A  de- 
mand for  inspection  or  copies  of  public  records,  accompanied 
with  personal  insult  or  vulgar  abuse  of  the  officer,  is  not  a  legal 
demand."  Where  the  statute  does  not  give  the  right  of  free 
access  to  all  the  public  records,  documents  and  files  in  the  office, 
the  demand  must  be  for  the  examination  of  specific  records.  A 
demand  on  an  officer  in  charge  of  public  records  by  a  private 
citizen  to  be  permitted  to  examine  "any  and  all  books  of  public 
records  in  the  office  which  he  may  desire  to  examine,  or  which 


Cowley  V.    Pulsifer,    137   Mass.   392 
(1884). 

6  Boyden  v.  Burke,  14  How.  (U. 
S.)  576  (1852).  In  this  case  it 
was  said :  "A  party  entitled  to 
the  services  of  a  public  officer  must 
request  them  in  a  proper  manner. 
He  has  no  right  to  accompany  his 
demand  for  copies  or  inspection  of 
the  records  with  personal  insult  or 
vulgar  abuse  of  the  officer.  Those 
to  whom  the  people  have  committed 
a  high  trust  are  entitled  at  least 
to  common  courtesy  and  are  not 
bound  to  submit  to  the  insolence 
or  ill  temper  of  those  who  dis- 
regard the  decencies  of  social  in- 
tercourse. A  demand  accompanied 
with  rudeness  and  insult  is  not  a 
legal  demand.  But  where  a  person 
has  made  a  demand  for  copies  or 
for  inspection  of  records  in  such 
an  insulting  manner  as  to  take  it 
out  of  the  category  of  legal  de- 
mands, he  may,  a  little  later,  make 


a  demand  in  a  proper  manner  and 
unaccompanied  with  any  insulting 
language.  If  the  second  or  later 
demand  is  made  in  a  proper  man- 
ner, the  officer  is  not  justified  in 
refusing  it  on  account  of  the  for- 
mer misconduct  of  the  demandant, 
or  for  the  purpose  of  enforcing  an 
apology  by  withholding  tlie  rights 
of  the  demandant.  Ill  manners  or 
bad  temper  do  not  work  a  forfei- 
ture of  a  man's  civil  rights.  While 
want  of  an  apology  for  his  pre- 
vious rudeness  and  insult  might 
well  justify  the  officer  in  refusing 
all  social  intercourse  with  the  de- 
mandant, yet  it  could  not  release 
him  from  the  obligations  imposed 
upon  him  by  his  official  station.  In 
such  a  case  the  want  of  an  apology 
does  not  take  away  rights  which 
are  given  by  the  laws  of  the  land." 
See  also  Brewer  v.  Watson,  71  Ala. 
299;   46  Am.  Kep.  318    (1882). 


PURPOSE  OF  EXAMINATION.  63 

his  business,  duty  or  interest  may  require,"  is  too  general  to  be 
the  basis  for  a  writ  of  mandamus  against  the  officer." 

§  70.  Purpose  of  examination.  Undoubtedly  the  right  to  in- 
spect the  records  is  controlled  to  some  extent  by  the  object  for 
which  the  examination  is  to  be  made  and  the  use  to  be  made  of 
the  information.  It  has  therefore  been  held  that  the  officer  in 
charge  of  the  public  records  has  such  an  interest  as  entitles  him 
to  inquire  into  the  purpose  of  the  proposed  examination  and  to 
refuse  an  inspection  of  them  when  in  his  best  judgment  such  in- 
spection is  not  warranted  by  law.^  It  has  also  been  held  that  in 
the  absence  of  statutory  provisions  giving  the  right  of  free  in- 
spection to  any  person,  or  when  the  statutes  limit  the  right  of 
inspection,  the  officer  in  charge,  as  custodian  of  the  records,  is 
the  proper  person  to  determine,  in  the  first  instance,  the  law- 
fulness of  the  purpose  of  an  intended  inspection.''  But  the 
right  of  the  officer  to  inquire  into  the  purpose  of  the  examina- 
tion, when  a  request  or  demand  is  made  on  him  for  inspection 
of  the  records,  has  been  very  forcibly  denied.^'^  Whether  the 
custodian  has  this  right  or  not,  it  is  certain  that  the  court 
will  not  grant  the  writ  of  mandamus  to  the  relator  unless  the 
record  discloses  that  the  demand  for  inspection  was  made  for  a 
proper  purpose.  To  entitle  him  to  the  aid  of  the  court  he  must 
show  that  he  desires  an  inspection  for  a  proper  purpose.  It  is 
frequently  said  in  the  opinions  of  courts  that  the  writ  will  not 
be  granted  for  a  useless  purpose  or  merely  to  enable  a  person  to 
gratify  a  Mdiim,  a  fancy,  spite  or  an  idle  curiosity  in  searching 
the  records,  and,  indeed,  it  is  difficult  to  imagine  that  any  such 
purpose  can  constitute  a  basis  for  any  kind  of  an  action. 

§  71.  Court  will  pass  on  purpose  of  examination.  On  an  ap- 
plication for  a  writ  of  mandamus,  where  a  demand  on  the  officer 
and  a  refusal  by  him  has  been  shown,  the  court  will  pass  on 

7  State  V.  Reed,  36  Wash.  638 ;  79  44  X.  W.  Rep.  282 ;  7  L.  R.  A.  73 
Pac.  Rep.  306  (1905).  See  People  (1889).  In  re  Chambers,  44  Fed. 
V.  Walker,  9  Mich.  328    (1861).  Rep.  786    (1891).     Hanson  v.  Eich- 

8  Payne  v.  Staunton,  55  W.  Va.  staedt,  69  Wis.  538 ;  35  N.  W.  Rep. 
202;  46  S.  E.  Rep.  727  (1904).  30  (1887).  See  dissenting  opinion 
See  Brewer  v.  Watson,  71  Ala.  299;  in  Payne  v.  Staunton,  55  W.  Va. 
46  Am.  Rep.  318   (1882).     See  §  56.  202;    46    S.    E.    Rep.    727     (1904). 

8  State    V.    McCubrey,    84    ^Minn.      Commonwealth    v.    Walton,    6    Pa. 
439;  87  N.  W.  Rep.   1126    (1901).         Dist.  Rep.  287    (1895). 
10  Burton  v.  Tuite,.  78  Mich.  363; 


64  MANDAMUS. 

the  lawfulnesss  of  the  purpose  of  the  intended  examination. 
AVhile  the  person  seekinj]:  inspection  is  not  bound  by  the  de- 
cision of  the  officer  on  the  question  of  the  lawfulness  of  the 
purpose  of  the  proposed  examination,  but  may  petition  the 
court  to  revise  his  decision,  it  is  safe  for  him  to  state  such  pur- 
pose broadly  and  fully  when  a  demand  is  made  as  a  basis  for  a 
petition  for  a  writ  of  mandamus,  in  order  that  he  may  come 
before  the  court  with  as  clear  a  legal  right  as  possible.  When 
mandamus  is  asked  to  compel  the  inspection  of  records,  under 
the  strict  law  governing  the  writ  the  relator  must  have  a  legit- 
imate use  for  the  inspection  in  order  to  show  a  clear  legal  right. 
It  is  not  a  proper  purpose  to  seek  to  examine  the  records  in 
order  to  publish  broadcast  the  details  of  a  divorce  suit,  or  to 
gratify  a  private  spite,  or  to  promote  public  scandal.''^  Where 
the  right  of  inspection  is  not  given  by  statute,  a  demand  for 
the  privilege  of  taking  memoranda  from  the  records  for  future 
use  in  the  business  of  abstract  making  is  not  considered  for  a 
proper  purpose.^-  An  inspection  of  the  public  records  and 
documents  may  not  be  denied  merely  because  it  is  apprehended 
that  the  information  obtained  will  be  employed  in  litigation 
against  the  state,  county  or  municipality.^^  Such  inspection 
may  not  be  denied  because  of  the  political  hostility  of  the  ap- 
plicant to  the  officer  in  charge  of  the  records.^*  The  fact  that 
an  abstracter  of  title  may  use  indiscriminately  the  information 
shown  by  the  certificate  of  an  officer,  as  a  basis  for  making  cer- 
tificates of  his  own  in  the  conduct  of  his  business,  does  not  con- 
cern the  officer.  A  public  officer  has  no  such  interest  in  the 
records  intrusted  to  his  care  as  will  justify  him  in  refusing  to 
issue  to  an  abstracter  a  certificate  which  the  statute  requires 
him  to  give  to  any  person  requesting  it." 

§  72.  A  substantial  matter  involved.  After  the  relator  has 
clearly  established  his  right  to  inspect  the  records,  he  must  show 
that   some   substantial  matter   is   involved   in   the   controversy. 

11  In  re  Caswell,  18  R.  I.  835;  29  "State   v.    Williams,    110    Tcnn. 
Atl.    Rep.    259;    49    Am.    St,    Rep.  549;   75  S.  W.  Rep.  948   (1003). 
814;  27  L.  R.  A.  82    (1893).  instate    v.    Scow,    93    Minn.    11; 

12  See  §  87.  100   X.    W.   Rep.   382    (1904).      In 

13  People  V.  Throop,  12  Wend.  re  Clianibers,  44  Fed.  Rep.  786 
183(1834).     Brewer  V.  Watson.  71  (1891). 

Ala.  299;  4G  Am.  Rep.  318    (1882). 


NO  ADEQUATE  REMEDY.  65 

We  have  just  seen  that  the  court  will  not  aid  him  to  enable  him 
to  gratify  an  idle  curiosity  or  a  personal  spite,  to  promote  a 
public  scandal  or  to  publish  matter  which  tends  to  demoralize 
and  corrupt  the  public  taste.  It  is,  however,  sufficient  for  him 
to  show  that  the  public  records  and  documents  contain  infor- 
mation which  he  is  interested  to  know  as  affecting  his  property 
rights  or  the  conduct  of  his  business.  But  it  is  not  essential 
that  he  show  so  personal  and  private  an  interest.  It  is  not 
necessary  that  the  interests  of  the  person  seeking  inspection 
shall  be  private,  capable  of  sustaining  a  suit  or  defence  on  his 
own  personal  behalf.  It  will  justify  his  demand  for  inspection 
if  he  is  acting  in  the  suit  as  a  representative  of  the  common  or 
public  right.  The  court  will  act  by  mandamus  at  the  instance 
of  a  private  person  for  the  redress  of  a  public  wrong  by  a  pub- 
lic officer  whose  official  sphere  is  confined  to  some  political  divi- 
sion of  the  state,  whenever  the  applicant  is  one  of  the  class  of 
persons  to  be  most  directly  affected  in  the  enjoyment  of  the  public 
right,  and  when  the  public  convenience  will  be  subserved  by  the 
remedy  desired.^^  Where  one  is  insisting  on  a  public  right  and 
is  petitioning  for  a  writ  of  mandamus  to  procure  the  enforcement 
of  a  public  duty,  he  need  not  show  that  he  has  a  private  or  special 
interest  in  the  result.  It  is  sufficient  to  show  that  he  is  a  citizen 
and,  as  such,  is  interested  in  the  execution  of  the  laws.  In  such  a 
case  the  people  are  to  be  regarded  as  the  real  party  in  interest. ^^ 
§  73.  No  other  adequate  remedy.  The  courts  have  not  dis- 
cussed the  sufficiency  of  the  ordinary  legal  remedies  to  which 
relators  in  mandamus  suits  might  have  resorted  in  order  to  ob- 
tain their  legal  rights  to  inspect  and  examine  public  records, 
but  they  have  assumed  that  mandamus  is  the  proper  proceeding 
where  the  right  is  clear  and  a  substantial  matter  is  in  contro- 
versy.^* It  is  well  established  that  mandamus  is  the  proper 
proceeding  to  compel  a  ministerial  officer  to  perform  his  duty, 
and  it  is  manifest  that  it  is  a  direct  proceeding  against  a  cus- 
todian of  the  public  records,  which  goes  at  once  into  the  merits 
of  the  dispute  and  establishes  the  rights  of  the  parties  without 
delay.     It  is  more  just  and  fair  to  a  public  officer  than  a  suit 

16  state  V.   Williams,  41  N.  J.  L.  "High  Extr.   Rem.,  §  431;   Mer- 

332    (1879)  ;   20  Am.  &  Eng.  Ency.      rill  on  Mandamus,  §  230. 
Law,   522,  523.  is  See  Brewer  v.  Watson,  61  Ala. 

312    (1878). 


66  MANDAMUS. 

for  damages.  Where  the  object  is  to  enforce  obedience  to  a 
public  law,  the  writ  of  mandanuis  is  the  direct  proceeding  and 
is  demandable  of  right. ^" 

§  74.  Petition  for  mandamus  by  an  abstracter.  It  has  been 
questioned  whether  mandamus  is  the  proper  remedy  for  an  ab- 
stracter to  compel  the  recorder  to  permit  him  to  prepare  a  set 
of  abstract  books  from  the  public  records.  The  remedy  by 
mandamus  contemplates  the  necessity  of  indicating  the  precise 
thing  to  be  done,  and  its  adaptation  to  cases  calling  for  contin- 
uous action,  varying  according  to  circumstances,  has  been 
doubted.  It  has,  therefore,  been  suggested  that  where  a  claim 
is  for  a  continuous  use  of  the  recorder's  office  and  its  public 
contents,  from  day  to  day  and  week  to  week,  in  preparing  a  set 
of  private  abstract  books,  and  not  merely  for  a  single  occasion 
with  all  its  material  facts  defined,  there  must  be  great,  if  not 
insuperable  difficulty  in  enforcing  the  claim  by  mandamus.^** 
It  has  also  been  suggested  that  the  proper  province  of  a  writ  of 
mandamus  is  to  enjoin  the  doing  of  particular  acts,  and  not  to 
constrain  a  person  to  regulate  his  whole  course  of  conduct  ac- 
cording to  some  general  principle.-^  But  in  almost  all  the  cases 
in  which  persons  have  resorted  to  the  courts  to  obtain  access  to 
the  records  they  have  done  so  by  petition  for  a  writ  of  manda- 
nius,  and  in  only  two  or  three  cases  is  there  any  comment  on  the 
remedial  rights  of  the  parties.  So  uniform  has  been  the  prac- 
tice of  the  courts  of  the  different  states  to  pass  on  the  substantive 
rights  of  the  parties  under  this  form  of  action,  that  it  may  be 
confidently  laid  down  as  the  proper  remedy  in  such  cases, 
W'hether  the  relator  be  a  person  demanding  his  rights  in  some 
particular  matter,  or  one  desiring  to  use  the  records   contin- 

19  High     Extr.     Rem.,     §     9;      1  2    Dak.    332;    8    N.    W.    Rep.     135 

Greenleaf,  Ev.,  §§  471,  478.     Stock-  (1880).       Rader   v.    Committee,   43 

nan    v.    Brooks,    17    Colo.    248;    29  N.    J.    L.    518     (1881).       Common- 

Pac.  Rep.  146  (1892).    No  adequate  wealth  v.  Common  Council,  34  Pa. 

remedy   at    law;    mandamus.       See  (10  Casey)    490    (1859). 

Clement    v.    Graham,    78    Vt.    290;  20  Diamond  Match  Co.  v.  Power.s, 

63    Atl.    Rep.    14G     (1906).      People  51    IMich.    145;    16   N.   VV.    Rep.   314 

V.    Ililliard,    29     111.    413     (1862).  (1883),     explained     in     Burton     v. 

Chumiiscro   v.    Potts,    2    Mont.    242  Tuite,  78  Mich.  363. 

(1875).        State    v.     Company,     10  21  Barber   v.   Title   Guaranty   Co., 

Tex.   Civ.   App.   12;    30  S.   W.    Rep.  53  N.  J.  Eq.  158;  32  Atl.  Rep.  222 

206    (1895).     Territory  V.   Shearer,  (1895). 


PROPER  MANDATE  OF  THE  COURT.  67 

Tiously  in  the  conduct  of  his  business.  In  some  cases  the  writ  of 
injunction  has  been  prayed  for  to  restrain  the  officer  from  in- 
terfering with  the  lawful  access  of  the  complainant  to  the  public 
records.  The  judgment  or  decree  of  the  court  is  substantially 
the  same  in  each  proceeding.  Where  relief  is  granted  to  the 
relator  in  a  petition  for  a  writ  of  mandamus,  the  mandate  of 
the  court  is  that  he  be  permitted  to  have  access  to  the  records 
under  such  reasonable  rules  and  regulations  as  may  be  pre- 
scribed by  the  officer,  and  where  relief  is  given  to  the  complain- 
ant on  his  bill  for  an  injunction,  the  decree  of  the  court  is  man- 
datory in  its  nature  and  commands  the  officer  to  cease  to  in- 
terfere with  the  rights  of  the  complainant  and  to  permit  him  to 
have  access  to  the  records  under  reasonable  rules  and  regula- 
tions to  be  fixed  by  the  officer. 

§  75.  Proper  mandate  of  the  court.  It  is  a  mistake  to  suppose 
that  it  is  necessary  or  even  proper  in  the  mandate  of  the  court 
to  lay  down  the  general  principles  which  shall  regulate  the  whole 
course  of  conduct  of  the  official  custodian  of  the  records.  By 
reason  of  his  statutory  duty  to  care  for  and  preserve  the  records, 
he  is  clothed  with  a  ministerial  discretion  in  the  conduct  of  his 
office,  and  the  court  will  not  only  not  interfere  so  long  as  he  ex- 
ercises it  fairly,  but  it  will  not,  in  advance  of  his  action,  pre- 
scribe how  he  shall  conduct  his  official  duties.  It  will  presume 
that  he  will  do  his  duty  when  the  right  of  the  relator  to  have  ac- 
cess to  the  records  has  been  established.  In  one  case  it  was  said : 
"We  do  not  feel  called  upon  to  specify  the  number  of  persons 
that  respondent  must  accommodate,  or  to  prescribe  the  rules 
which  he  may  require  relator  to  observe.  These  should  be  made 
with  reference  to  the  circumstances  and  with  a  view  to  the  rea- 
sonable use  by  relator  of  books  and  office.  We  assume  that,  the 
question  of  the  right  to  use  the  same  being  settled,  the  parties 
can  adjust  their  differences."^^  The  peremptory  writ  on  the 
petition  of  an  abstracter  of  titles  should  merely  require  the 
officer  to  permit  such  inspection,  examination,  taking  of  mem- 
oranda and  copying  of  records  as  the  relator  may  be  entitled 
to,  and  to  permit  the  Avork  to  be  done  by  the  abstracter  and  such 
a  number  of  his  employees  as  in  the  exercise  of  his  unbiased  judg- 
ment and  discretion  may  be  permitted  at  the  same  time  to  pur- 

22  Day  V.  Button,  96  Mich.  600;       66  N.  W.  Rep.  3    (1893). 


6S  MANDAiroS. 

sue  their  searches  in  his  office  without  interfering  with  his  official 
duties,  and  without  depriving  other  persons  equally  entitled  to 
make  such  searches  of  the  convenient  opportunity  for  so  doing, 
and  under  the  restrictions  and  regulations  imposed  by  the  law 
governing  the  duties  of  his  custodianship,-^  In  one  case  the 
trial  court  submitted  to  the  jury  the  niuuber  of  assistants  which 
the  abstract  maker  should  be  permitted  to  have  in  the  office  of 
the  recorder,  and  entered  judgment  commanding  the  recorder 
to  permit  the  abstracter  to  have  in  the  recorder's  office  the  num- 
ber of  employees  which  the  jury  had  found  could  conveniently 
be  accommodated  there  during  office  hours  to  inspect  and  make 
memoranda  and  copies  of  the  records  of  the  office,  including 
papers  filed  but  not  recorded,  and  to  permit  the  abstracter  to 
have  an  extra  assistant  for  the  space  of  one  hour  during  each 
day  to  compare  notes  and  memoranda  with  the  records.  On 
appeal  to  the  supreme  court  a  modification  of  this  judgment  was 
ordered  to  provide  that  the  abstracter  and  the  designated  num- 
ber of  employees  might  occupy  the  office  during  such  hours  as 
might  be  specified  reasonably  and  generally  by  the  recorder.-* 

§  76.  Discretionary  writ  versus  statutory  right.  "Where  the 
statute  of  a  state  provides  that  the  public  records  shall  be  open 
for  examination  by  any  person  for  any  lawful  purpose,  it 
usually  has  been  held  that  the  statute  literally  means  what  it 
actually  says.-^  But  in  two  cases  it  was  held  that  a  recorder 
may  not  be  compelled  by  mandamus  to  permit  an  abstracter  to 
use  his  office  and  the  county  records  for  the  purpose  of  making 
a  tract  index  to  the  records,  even  though  the  statutes  contain 
such  a  provision.-'®  The  argument  was  that  such  a  statute  did 
not  give  to  the  abstracter  a  clear  legal  right  to  take  memoranda 
of  the  whole  of  the  records  in  the  office  for  future  use  in  his 
business,  and  that  the  discretionary  writ  of  mandamus  should 
be  denied  if  the  recorder  was  opposed  to  the  prosecution  of 
the  work  in  his  office  by  the  abstracter.  It  has  been  sug- 
gested   that    such   a    construction  confers   on    the    the    county 

23  People  V.   Reilly,   38   Hun    429  2»  See  §  114  ot  seq. 

(1886);     High     on     Extraordinary  20  Boan  v.  People,  7  Colo.  200;  2 

Pemedies,  §  43.  Pac.    Rep.    909    (1883).       Cormack 

2*  Upton  V.  C'atlin,   17   Colo.  540;  v.   Wolcott,    37   Kan.   391;    15   Pac. 

31   Pac.  Pvep.  172;    17  L.   R.  A.  282  Rep.  255    (1887). 
(1892). 


STATUTORY  RIGHT.  69 

officer  too  great  power  and  discretion  in  view  of  the  express 
language  used  in  the  statute,^^  and  that  it  opens  a  way  for  im- 
proper influences  and  inducements  in  the  conduct  of  the  office.-* 
It  may  also  be  suggested  that  it  places  a  member  of  the  public 
at  an  unfair  disadvantage  when  he  seeks  to  determine  his  rights 
under  such  a  statute.  When  he  has  been  denied  the  right  of 
inspection  and  appeals  to  the  court,  urges  the  purposes  and  de- 
sign of  the  public  records,  and  presents  the  statutory  law  under 
which  he  claims,  he  is  met  with  technical  objections  of  a  seri- 
ous character  before  his  substantive  rights  may  be  passed  on. 
He  is  told  that  the  writ  which  he  prays  for  is  not  demandable 
of  right,  but  is  discretionary,  and  that  he  is  seeking  to  override 
the  will  and  the  objection  of  a  public  officer,  who  has  the  power 
to  act  in  one  way  or  in  just  the  opposite  way,  according  to  his 
wish.  He  is  then  told  that  while  he  comes  within  the  terms  of 
the  statute,  the  court,  in  the  exercise  of  its  discretion,  will  not 
enforce  his  rights  against  the  will  of  the  county  officer.  Such 
a  process  of  construction  of  a  statute  is  highly  technical  and  has 
not  fcund  general  favor  with  the  courts  or  with  the  legisla- 
tures.-^ A  statute  conferring  on  members  of  the  public  personal 
rights  in  the  use  of  public  property,  which  are  to  be  exercised 
for  the  convenience  and  security  of  the  public  as  well  as  for 
private  gain,  should  be  considered  broadly  and  liberally,  and 
should  not  be  modified  or  controlled  by  general  principles  reg- 
ulating a  remedial  writ  issued  out  of  courts,  or  conferring  dis- 
cretion on  an  officer  in  the  administration  of  his  office.  Where 
the  object  is  to  enforce  obedience  to  a  public  law,  the  writ  of 
mandamus  is  the  direct  proceeding  and  is  demandable  of  right.^** 

27  §  53.  28  §  60.  20  §§  60,   103. 

30  High  Extr.  Rem.,  §  9.    1  Green-       v.    Brooks,    17   Colo.   248;    29    Pac. 
leaf   Ev.,    §§    471,   478.       Stodcnan      Rep.  146    (1892). 


CHAPTER  VIIL 

PUBLIC  RECORDS,  GENERAL  RIGHT  OF  INSPECTION". 

§  77.  Nature  of  public  records.  A  public  record  is  "a  written 
memorial  made  by  a  public  officer  authorized  by  law  to  perforin 
that  function,  and  intended  to  serve  as  evidence  of  something 
written,  said  or  done."^  The  officer  must  have  authority  to 
make  the  record,  but  the  authority  need  not  be  derived  from  ex- 
press statutory  enactment.  Whenever  a  written  record  of  the 
transaction  of  a  public  officer  in  his  office  is  a  convenient  mode 
of  discharging  the  duties  of  his  office,  it  is  not  only  his  right  but 
his  duty  to  keep  the  memorial,  whether  expressly  required  so  to 
do  or  not.  When  the  record  is  kept,  it  becomes  a  public  doc- 
ument— a  public  record  belonging  to  the  office  and  not  to  the 
officer,  and  it  is  the  property  of  the  state  and  not  of  the  citizen. 
It  is  in  no  sense  a  private  memorandum.^  A  book  kept  by  a 
person  in  public  office,  in  which  he  is  required,  whether  by  stat- 
ute or  by  the  nature  of  his  office,  to  write  down  particular  trans- 
actions occurring  in  the  course  of  his  public  duties  under  his 
personal  observation,  is  a  public  document.^  To  entitle  a  book 
to  the  character  of  an  official  document  it  is  not  necessary  that 
an  express  statute  shall  require  it  to  be  kept  or  that  the  nature 
of  the  office  should  render  the  keeping  of  it  indispensable.  It 
is  sufficient  that  it  be  kept  by  proper  authority.*  Such  a  book 
is  a  public  document  because  the  entries  in  it  are  of  public  in- 
terest and  notoriety,  and  because  they  are  made  under  the  sanc- 
tion of  an  oath  of  office,  or  at  least  under  that  of  official  duty."* 

These  are,  of  course,  broad  and  general  principles  of  law.  In 
fact,  they  are  so  broad  and  general  that  they  have  been  rarely 
applied  to  books  and  documents  in  offices  controlled  by  the  re- 

iBouvier   Law   Diet.,   Vol.    2,    p.  711     (1874);    Clay   v.    Ballard,    87 

424.  Va.  787;   13  S.  E.  Rep.  262   (1891). 

2  24  Am.  &  En.c;?.  Ency.  Law   (2nd  s  1   Crponlpnf's   Ev.,   §   483. 

Ed.),     170;     Coleman    v.    Common-  ^l   Croonloaf's  Ev.,  §  406. 

wealtli,  25  Gratt.  881;  IS  Am.  Rop.  &  1   Croenleaf's  Ev.,   §  484. 

70 


GENERAL  PRINCIPLES.  71 

cording  acts.  They  have  been  governing  principles  in  deter- 
mining whether  or  not  books,  documents  and  entries  in  the  ex- 
ecutive and  legislative  departments  were  public  records." 

§  78.  Application  of  general  principles.  Stub  receipt  books 
in  a  city  treasurer's  office,  which  contain  the  record  of  canceled, 
certificates  of  tax  sales,  the  list  of  lots  redeemed  from  sales  for 
special  city  taxes,  and  also  the  list  of  lots  sold  to  the  city  for  de- 
linquent taxes  and  afterward  assigned  to  individuals,  are  public 
records  within  the  meaning  of  an  act  giving  access  to  public 
records  to  all  persons  for  any  lawful  purpose,  notwithstanding 
the  fact  that  all  data  contained  in  such  books  are  at  the  conven- 
ience of  the  treasurer  entered  in  record  books  which  are  accessi- 
ble to  the  public.''  In  the  absence  of  any  provision  of  the  stat- 
utes for  access  by  the  public  to  the  records  of  judgments  of  the 
courts,  any  person  interested  has  a  right  to  examine  those  rec- 
ords. They  are  no  less  open  to  the  public  by  reason  of  the  ab- 
sence of  a  provision  declaring  the  right.*  Prior  to  the  year 
1897  the  clerk  of  the  supreme  court  received  to  his  own  use  all 
the  fees  derived  from  furnishing  searches  for  judgments  in  his 
office.  In  that  year  the  clerk  was  placed  on  a  salary  in  lieu  of 
all  fees,  and  the  gross  income  of  the  office  was  turned  into  the 
state  treasury.  There  was  at  the  time  in  the  office  a  system  of 
indexing  judgments  called  the  patent  or  short  form,  which  dif- 
fered from  the  old  method  of  appending  a  separate  index  to 
each  book  of  records,  although  the  older  method  was  still  kept 
up.  The  patent  indices  enabled  a  search  to  be  made  more 
quickly.  The  cost  of  keeping  up  both  forms  of  indices  since 
1897  had  been  paid  out  of  the  state  treasury.  In  January, 
1900,  a  demand  was  made  on  the  clerk  by  an  attorney  of  a  com- 
pany, lawfully  engaged  in  the  business  of  title  insurance,  for 

6  20  Am.  &  Eng.  Ency.  Law,  505,  189  U.  S.  131;  23  Sup.  Ct.  Rep. 
508,  521,  523.  24  Am.  &  Eng.  569  (1900).  Brewer  v.  Watson,  61 
Ency.  Law  (2n(i  Ed.),  169,  183,  Ala.  310  (1878).  P>rewer  v.  Wat- 
184.  son,   65   Ala.   88    (1880).      Clement 

7  Burton  v.  Tuite,  80  Mich.  218;  v.  Graham,  78  Vt.  290;  63  Atl. 
45  N.  W.  Rep.  88;  7  L.  R.  A.  824  Rep.  146  (1906).  Phelan  v.  State, 
(1889).     Burton  v.  Tuite,  78  Mich.  76  Ala.  49    (1884). 

363;   44  N.   W.   Rep.   282;    7  L.   R.  » Lum   v.   McCarty,   39   N.   J.   L. 

A.    73     (1889).       See    Aitcheson    v.  287    (1877),  overruling   Fleming  v. 

Huebner,   90  Mich.   643;    51   N.   W.  Hudson,  30  N.  J.  L.  280. 
Rep.  634   (1892).    Bell  v.  Title  Co., 


72  PUBLIC  RECORDS. 

permission  to  examine  the  patent  indices.  On  a  petition  for  a 
writ  of  mandamus  it  was  held  that  the  public  did  not  neces- 
sarily have  the  right  to  use  a  thing  because  it  was  paid  for  out 
of  public  funds,  and  that  no  clear  legal  right  of  the  relator  had 
been  violated  by  the  refusal  of  permission  to  use  the  patent  in- 
dices." Special  findings  of  facts  were  taken  to  the  appellate 
court,  but  the  evidence  on  which  the  facts  were  found  was  not  in 
the  record.  The  court  below  found  that  there  was  no  statute 
reqniring  the  county  treasurer  to  keep  a  record  of  certificates 
of  redemption  of  land  from  tax  sales,  but  that  such  records 
were  kept  by  him  for  his  own  convenience,  though  at  public  ex- 
pense, and  held  that  they  were  not  public  records  open  to  inspec- 
tion as  a  matter  of  right.  There  being  nothing  in  the  record  to 
shov*'  that  the  expenditure  for  keeping  up  the  records  was  proper 
and  authorized  by  law,  the  appellate  court  refused  to  disturb  the 
finding  of  the  court  below.^^  A  written  direction  by  the  at- 
torney of  a  judgment  plaintiff,  giving  instructions  to  a  sheriff 
as  to  the  enforcement  of  an  execution,  is  not  a  public  record, 
open  for  public  inspection.^^ 

§  79.  Are  some  records  more  public  than  others  ?  In  speaking 
generally  of  public  records  it  has  been  urged  that  all  kinds  of 
public  records  may  not  be  equally  public  and  open  to  general 
inspection.  In  a  very  well  considered  case  in  which  the  right 
of  inspection  is  treated  of  at  great  length  it  is  said:  "The 
filing  and  recording  of  documents  relating  to  private  title 
is  at  private  expense,  and,  although  the  records  regarding 
them  are  public,  they  may  not  be  considered  so  in  that  broad 
sense  in  which  books  and  entries  relating  to  elections,  revenues, 
fees  and  the  acts  and  conduct  of  officials  of  more  general  con- 
cern or  interest,  are  considered  public."  ^^  The  proposition  as 
stated  has  a  plausible  sound,  but  it  may  not  bear  close  analysis. 
If  the  payment  of  the  recording  fee  is  the  controlling  factor 
which  makes  the  record  of  a  conveyance  less  public  than  some 
other  records,  we  must  place  in  the  same  category  the  record 
and  decision  of  a  private  suit  between  private  persons  who  pay 

0  Fidelity  Trust   Co.  v.   Clerk,   05  n  Wholan   v.   San   Francisco.    lU 

N.    J.    L.    495;    47    Atl.    Rep.    4ol  Cal.  548;  40  Pac.  Kep.  4G8    (1890). 

(1900).  1-' State  v.   Grimes,          Nev.          ; 

10  State  V.    Rcod,   30   Wash.   038;  84   Pac.   I{op.   1001;   5  L.  R.  A.    (n. 

79  Pac.   Rep.  300    (1905).  8.)    545    (1906). 


COMPARATIVE  PUBLICITY.  73 

the  fees  and  costs  of  the  litigation.  But  we  know  that  the  de- 
cisions in  cases  between  private  persons  are  published  under 
official  sanction  as  well  as  by  private  enterprise,  and  that  the 
books  and  papers  containing  them  are  sold  to  any  person  who 
may  wish  to  buy  them.  Such  decisions  are  held  to  contain  the 
law  of  the  land  pertaining  to  private  property,  and  they  are  of 
public  interest  for  that  reason.  They  often  pass  on  questions 
of  private  titles  to  land,  and  when  such  is  the  case  they  give 
them  wide  publicity.  A  contention  between  two  private  per- 
sons may  be  considered  as  a  private  matter,  but  a  lawsuit  be- 
tween private  persons,  which  is  lis  pendens, — notice  to  everyone 
of  the  rights  claimed  under  it, — is  in  a  very  restricted  sense  a 
matter  of  private  concern.  A  deed  to  lands  may  be  a  document 
"relating  to  private  titles."  It  certainly  is  the  private  prop- 
erty of  the  grantee,  and  he  has  dominion  over  it.  While  under 
our  laws  the  recording  of  conveyances  and  the  records  of  con- 
veyances are  of  primary  importance,  a  man  may  keep  his  deed 
off  the  records  of  the  recorder's  office  if  he  w^ishes.  He  merely 
does  so  at  his  peril.  After  the  deed  has  been  filed  for  record 
it  may  still  be  considered  as  a  document  "relating  to  private 
titles,"  for  no  new^  force  or  effect  is  given  to  a  deed  by  the  act 
of  recording  it.  But  the  filing  and  record  of  the  deed  in  the 
recorder's  office  is  an  entirely  different  matter.  The  recorder's 
office  is  the  depository  of  information  on  titles  to  real  estate  in 
the  county  in  which  it  is  situated,  and  its  records  are  procla- 
mations and  declarations  by  the  grantees  of  the  conveyances  and 
are  constructive  notice  to  all  the  world  of  the  contents  of  them. 
"When  the  grantee  in  a  deed  places  it  on  record  he  does  more 
than  to  have  it  transcribed ;  he  causes  a  record  of  it  to  be  made, 
by  which  he  gives  notice  to  the  public  of  his  rights  under  it, 
and  he  makes  this  record  public  in  the  broadest  possible  sense. 
The  effect  which  the  law  gives  to  the  record  of  the  instrument 
is  the  controlling  force  which  makes  it  a  public  record  in  the 
most  comprehensive  sense.  The  fact  that  he  pays  a  fee  for  the 
clerical  work  of  spreading  it  on  the  records  is  a  mere  incident. 
The  legislature  of  the  state  has  entire  control  of  the  records  in 
the  recorder's  office,  and  it  can  give  to  any  person  free  access 
to  them.  One  who  has  paid  the  fees  for  transcribing  a  deed 
will  not  be  heard  to  complain  of  any  act  of  the  legislature  giving 
free  access  to  the  records.     With  reference  to  the  last  part  of 


74  PUBLIC  RECORDS. 

the  quotation  imder  discussion,  it  is  only  necessary  to  say  that 
most  persons  are  engaged  in  pursuit  of  property,  and  that  under 
our  system  of  holding  titles  to  real  estate  the  public  records  of 
conveyances  are  possibly  of  as  much  "general  concern  or  in- 
terest" as  the  "books  and  entries  relating  to  elections,  revenues, 
fees  and  the  acts  and  conduct  of  officials." 

§  80.  Comparative  needs  of  inspection  of  public  records.  In 
a  recent  case  "  where  the  right  to  inspect  public  records  was 
treated  of  exhaustively,  it  was  said:  "As  regards  the  needs  of 
inspection,  records  may  be  divided  into  four  or  more  classes. 
It  is  most  important  to  have  free  examination  and  speedy  pub- 
lication of  the  statutes  and  decisions  which  make  the  law  by 
which  the  people  are  governed,  and  by  which  they  are  charged 
with  notice  in  their  conduct.  It  is  also  essential  to  the  public 
welfare  that  records  relating  to  revenues,  elections,  fees  and 
official  acts  generally  be  open  to  inspection.  Access  to  the  files 
and  copies  of  documents  relating  to  titles  to  property  by  persons 
who  have,  or  are  about  to  acquire,  an  interest  is  necessary  for 
their  protection.  Proceedings  in  civil  suits  are  sometimes  of 
such  a  scandalous  nature  that  closed  doors  are  justified  and 
publicity  is  better  suppressed." 

There  is  perhaps  a  suggestion  in  the  language  just  quoted 
that  there  is  a  comparative  need  of  inspection  of  public  records, 
and  that  the  need  is  different  in  each  of  four  or  more  classes. 
That  there  are  four  or  more  distinct  classes  of  public  records  is 
very  evident.  Legislative  enactments  differ  from  decisions  of 
courts,  and  both  these  differ  from  records  relating  to  revenues, 
elections,  fees  and  official  acts.  All  these  in  turn  differ  from 
records  relating  to  titles  to  real  estate.  But  it  does  not  follow 
necessarily  that  there  is  any  comparative  need  of  inspection  of 
these  different  records.  The  cases  holding  that  persons  have  a 
right  to  publish  statutes  and  court  decisions  as  a  matter  of 
private  enterprise  are  not  placed  on  any  broad  or  fundamental 
ground,  indicating  that  there  is  primary  need  that  the  public 
be  informed  as  speedily  as  possible  of  the  laws  governing  their 
rights  and  duties.  They  are  controlled  by  the  provisions  of 
statutes  which  were  the  subject  of  judicial  construction  in  these 

"State  V.  Grimes,         Nev.  ;       84  Tac.  Rep.   lOGl;   5  L,  R.  A.    (n. 

8.)   545    (190G), 


NEEDS  OF  INSPECTION.  75 

cases.^*  There  is  no  broad  uniform  doctrine  to  the  effect  that 
the  public  may  freely  and  as  a  matter  of  right  inspect  records 
relating  to  revenues,  fees,  elections  and  official  acts.  On  the 
contrary,  it  has  been  held  repeatedly  that  an  applicant  who 
desires  to  inspect  such  records  must  show  that  the  purpose 
of  the  inspection  is  to  vindicate  some  private  or  public  right ; 
and  where  his  right  has  been  upheld,  it  has  been  shown  that 
the  applicant  was  within  the  rule.^^  So  far  as  the  decisions 
of  courts  have  gone,  independent  of  legislative  enactment,  they 
have  placed  the  need  of  inspection  of  records  relating  to  titles 
to  real  estate  on  the  same  basis  as  the  needs  of  inspection  of 
other  public  records,  and  where  legislatures  have  sought  to  reg- 
ulate the  inspection  of  public  records,  they  usually  have  done  so 
in  general  terms  applying  alike  to  all  kinds  of  records.  This  is 
as  it  should  be.  The  records  of  title  to  real  estate  include  the 
records  of  taxes  and  special  assessments.  The  institution  of 
private  property  is  one  of  the  two  great  pillars  of  our  civili- 
zation, and  anything  which  is  as  fundamental  to  the  enjoyment 
of  the  ownership  of  real  estate  as  are  the  records  of  conveyances 
under  our  recording  acts,  making  such  records  constructive 
notice  of  the  contents  of  them  to  all  the  world,  is  of  the  utmost 
public  importance.  Our  system  of  revenues,  fees  and  official 
conduct  is  based  on  the  right  of  private  property,  and  it  would 
be  strange  if  the  records  of  these  things  should  be  more  open  to 
inspection  than  the  records  of  the  most  stable  form  of  private 
property.  The  records  of  revenues,  fees,  elections  and  official 
acts  are  seldom  examined,  except  as  to  taxes  and  special  assess- 
ments on  real  estate,  while  the  records  of  titles  to  real  estate 
are  daily  examined  by  hundreds  of  persons.  The  need  of  in- 
spection of  such  records  is  continuous  and  general,  and  it  can- 

14  Nash    V.    Lathrop,    142    Mass.  v.    Donovan,    10   N.    Dak.    209;    86 

29;    6    N.    E.    Rep.    559;     (1886).  N.   W.  Rep.   709    (1901).      State  v. 

Banks   v.   West   Pub.    Co.,   27   Fed.  King,  154  Ind.  621;  57  N.  E.  Rep. 

Rep.  50    (1886).  535     (1900).       Marsh    v.    Sanders, 

Instate  V.  Williams,  41  N.  J.  L.  110    La.     726;     34     So.     Rep.     752 

332;     32    Am.     Rep.     219     (1879).  (1003).      Clay   v.   Ballard,   87   Va. 

Payne  v.  Staunton,  55  W.  Va.  202;  787;     13    S.    E.    Rep.    262     (1891). 

46   S.  E.   Rep.    727    (1904).      State  Brown    v.     County     Treasurer,     54 

V.   Hoblitzelle,   85  Mo.   620    (1885).  Mich.  132;   19  N.  W.  Rep.  778;   52 

State   V.    Cummins,    76    Iowa     133;  Am.   Rep.   800    (1884). 
40  N.  W.  Rep.  124   (1886).     Stale 


76  PUBLIC  RECORDS. 

not  be  said  justly  that  it  is  in  any  manner  subordinate  to  the 
need  of  inspection  of  any  other  class  of  records. 

§  81.  No  distinction  between  public  records  in  this  country. 
There  is  said  to  be  a  distinction  under  the  English  law  between 
public  records  generally  and  judicial  records;  every  subject  who 
is  interested  in  judicial  records  may  examine  them,  but  he  does 
not  necessarily  have  the  right  to  examine  other  public  records.^* 
But  in  this  country  all  public  records,  whether  legislative,  ex- 
ecutive or  judicial,  are  governed  by  the  same  rules  of  inspection, 
unless  the  statutes  of  the  state  have  made  a  distinction  between 
them.^^ 

§  82.  Instruments  filed  but  not  recorded  are  public  records. 
"Where  the  statute  makes  an  instrument  notice  to  all  the  world 
of  the  contents  of  it  from  the  time  it  is  filed  for  record  in 
the  office  and  before  it  is  actually  spread  of  record,  it  is 
open  to  examination  as  soon  as  filed,  just  as  records  generally 
are,  and  subject  to  the  same  limitations.^* 

§  83.  What  is  included  in  right  of  inspection.  The  right  to 
inspect  and  examine  public  records  includes  the  right  to  make 
extracts  and  memoranda  from  them  and  to  copy  them.  One 
who  has  the  right  to  inspect  public  records  may  make  an  ab- 
stract of  them,  or  may  copy  them  at  length.^**  But  it  has 
been  held  that  this  rule  applies  only  to  such  records  as  are 
constructive  notice  of  the  contents  of  them,  and  that  the  right 
under  a  statute  to  inspect,  take  memoranda  or  make  an  abstract 

10  1    Grecnleaf    on    Ev.,    §§    471-  761    (1S86).     Boylan  v.  Warren,  39 

475.       1    Tidd's    Practice,    593.       3  Kan.  301;   18  Pac.  Rep.  174;  7  Am. 

Taylor's    Ev.     (Chamberlayne    Ed.),  St.    Rep.    551     (1888).        State    v. 

§§    1480-1483.      Wharton,   Ev.    (3rd  King,  154   Ind.  621;   57  N.  E.  Rep. 

Ed.),  §§  745-747.  535    (1900).     State  v.  McMillan,  49 

17  In  re  Caswell,  18  R.  I.  835;  Fla.  243;  38  So.  Rep.  660  (1905). 
29  Atl.  Rep.  259;  49  Am.  St.  Rep.  Marsh  v.  Sanders,  110  La.  726;  34 
814;  27  L.  R.  A.  82    (1893).  So.    Rep.    752     (1903).        State    v. 

18  State  V.  Grimes,  Nev.  ;  Long,  37  W.  Va.  266;  16  S.  E.  Rep. 
84  Pac.  Rep.  1061;  5  L.  R.  A.  (n.  578  (1892).  State  v.  Rachac,  37 
s.)  545  (1906).  Upton  v.  Catlin,  Minn.  372;  35  N.  W.  Rep.  7  (1887). 
17  Colo.  546;  31  Pac.  Rep.  172;  Hanson  v.  Eichstacdt,  69  Wis.  538; 
17  L.  R.  A.  282  (1892).  Bean  v.  35  N.  W.  Rep.  30  (1887).  In  re 
People,  7  Colo.  200;  2  Pac.  Rep.  Caswell,  18  R.  I.  835;  29  Atl.  Rep. 
909    (1883).  259;    49   Am.   St.    Rep.   214;    27    L, 

i»  Randolph     v.     State,     82     Ala.      R.  A.  82   ( 1893). 
527;   2  So.   Rep.  714;    60  Am.  Rep. 


PURPOSE   OF  RECORDER'S  OFFICE.  77 

of  public  records,  does  not  include  the  right  to  make  a  copy 
of  a  book  containing  letterpress  copies  of  abstracts,  or  to 
make  a  copy  of  a  tract  index  to  the  records,  though  they  were 
made  at  public  expense  and  kept  in  a  public  office.'** 

§  84.  Primary  purpose  of  recorder's  office.  The  office  of  re- 
corder or  register  of  deeds  was  never  known  to  the  English 
law.  Its  establishment  w^as  coeval  with  the  establishment  of 
many  of  the  provinces  along  the  Atlantic  ocean.  For  Penn- 
sylvania, it  was  agreed  upon  in  England  between  William 
Penn  and  the  first  purchasers  of  land  in  1662  and  after 
various  efforts  was  reduced  to  a  regular  system  in  1715.  This 
office  may  be  said  to  form  the  pivot  on  which  all  our  titles  to 
real  estate  turn.  The  design  of  it  has  been  to  furnish  a 
permanent  record  of  titles  and  muniments  of  title  to  real  estate, 
to  make  such  records  constructive  notice  of  their  contents  to 
all  the  W'Orld,  and  to  give  certified  copies  of  such  records  the 
same  force  and  effect  as  the  originals.  There  is  another  equally, 
if  not  more  important  design,  which  is  to  enable  all  persons 
to  obtain  knowledge  of  the  state  of  titles  to  real  estate  by 
deeds  and  mortgages.  "Without  a  search  there  is  no  safety  in 
dealing  with  real  estate.  Search  is  the  essence  of  the  office  and 
is  indispensable  to  effect  the  design  of  its  establishment  and 
to  give  certainty  and  security  to  the  community.-^  Where 
the  statutes  charge  subsequent  purchasers,  mortgagees,  and  judg- 
ment creditors  with  notice  of  every  recorded  conveyance  or 
writing  affecting  real  estate,  the  rule  of  caveat  emptor  applies, 
and  it  is  just  and  essential  to  the  protection  of  persons  intend- 
ing to  purchase  or  to  take  an  incumbrance  that  they  be  per- 
mitted to  search  the  records.  When  the  statute  imposes  notice 
and  liability,  it  must  by  implication  extend  the  right  of  exam- 
ination of  the  records  for  the  protection  of  anyone  who  is  in 
a  position  to  be  injured  if  he  does  not  make  an  examination. 
To  charge  the  public  with  notice  of  the  contents  of  records, 
and  then  to  deny  free  access  to  those  interested  for  an  exam- 
ination of  the  contents,  would  be  an  intolerable  mockery  in 

20  Davis  V.  Abstract  Construction  21  See  McCaraher  v.  Common- 
Co.,  121  111.  App.  121  (1905).  See  wealth,  5  Watts  &  Serg.  21,  p.  26 
Fidelity  Trust  Co.  v.  Clerk,  Co  N.  (1842).  Cormack  v.  Woicott.  37 
J.  L.  495;  47  Atl.  Rep.  451  (1900).  Kan.  391;  15  Pac.  Rep.  255  (1887). 
See  §  142. 


78  PUBLIC  RECORDS. 

this  day  and  generation,  comparable  to  that  perpetrated  by 
the  emperor  who  published  his  decrees  in  letters  so  small  on 
tablets  posted  so  high  that  they  could  not  be  read  by  the 
people,  and  then  punished  those  who  disobeyed  the  deerees.^^ 
It  is  obvious  that  the  primarj^  purpose  of  making  and  keeping 
records  of  titles  to  land  is  that  the  titles  and  their  history 
may  be  preserved  and  protected,  so  that  one  who  seeks  informa- 
tion contained  in  the  records  may  obtain  it.^^ 

§  85.  Who  may  make  the  search.  The  question  at  once 
arises,  who  may  make  a  search  of  the  records?  This  depends 
on  the  condition  of  the  law  in  the  different  states.  In  the 
early  days  in  some  states  the  practice  was  for  the  recorder  and 
his  deputies  to  make  the  searches.  Where  the  statute  makes 
it  his  duty  to  make  searches  and  to  give  certificates,  and  gives 
him  a  stipulated  fee  for  so  doing,  it  is  the  recorder's  right 
and  duty  to  follow  the  law,  and  no  one  else  has  the  right  to 
go  to  his  office  and  make  searches.  But  in  some  states  it  is 
held  that  it  is  no  part  of  the  official  duty  of  an  officer  to  make 
searches  of  the  records  in  his  office  for  matters  affecting  the 
title  to  real  property  and  to  certify  to  the  result  of  such  search. 
From  time  to  time  some  person,  as  one  of  the  public,  has  in- 
sisted that  he  was  entitled  to  examine  the  records  and  has 
appealed  to  the  courts  to  sustain  his  right.  Within  the  past 
forty  or  fifty  years  men  have  become  professional  abstracters 
of  titles  and  have  made  their  livelihood  by  making  abstracts  of 
titles  for  those  who  have  needed  them.  The  right  of  these 
men  to  make  abstracts  from  the  public  records  and  to  make 
tract  indices  of  the  records  has  been  denied  frequently  by  the 
officers  in  charge  of  them,  and  many  cases  involving  their 
rights  to  inspection  have  been  before  the  courts.  The  decisions 
in  these  cases  have  usually  rested  largely  on  statutory  pro- 
visions, and,  as  these  statutes  have  not  been  uniform,  there  is 
a  lack  of  uniformity  in  the  decisions  in  the  different  states. 
Similar  phrases  in  statutes  have  been  construed  in  a  directly 
opposite  way  by  the  courts  of  different  states,  and  the  courts 
and  judges  in  the  same  states  have  disagreed  as  to  the  correct 
interpretation   of   a  statute   relating   to   inspection   of   records. 

22  state   V.    Oriinrs,  Xev.        ;       Pub.    Co.,    27    Fed.    Rep.    50,    p.    57 

84  Pac.   Rop.   inoi;   5  L.   R.  A.    (n.        (18SG). 
B.)    545     (1906).       Banks    v.    West  23  Corniack  v.  Wolcott,  supra. 


COMMON   LAW.  79 

In  some  opinions  the  courts  have  not  confined  their  decisions 
to  the  facts  involved,  but  have  entered  into  broad  and  general 
arguments  and  have  made  misleading  and  inadvertent  state- 
ments which  tend  to  confuse  the  whole  subject  of  the  rights 
of  inspection.  In  many  cases  the  authorities  on  the  subject 
are  cited  without  accurate  discrimination  as  to  the  exact  hold- 
ing in  the  cited  cases.  Under  such  circumstances  it  is  manifest 
that  the  statutes  and  the  decisions  of  the  courts  must  be  closely 
studied  in  order  to  determine  in  a  given  case  who  may  search 
the  public  records,  and  to  what  extent  they  may  be  searched.'-* 

§  86.  Common  law  right  to  inspect  public  records.  There  are 
not  now  and  there  never  have  been  in  England  any  recording 
acts  such  as  we  are  familiar  with  in  this  country,  and  there 
has  always  been  in  England  great  objection  to  any  system  of 
registration  which  tends  to  give  publicity  to  the  condition  of 
titles.  The  registries  of  the  counties  of  York  and  jNIiddlesex, 
established  about  1708,  are  still  in  existence,  but  they  have 
never  been  popular  and  have  never  been  extended  to  other 
counties.  They  are  sometimes  said  to  be  similar  to  our  record- 
ing system,  but  in  reality  they  are  widely  different.  In  these 
counties  the  registration  of  a  deed  is  not  in  itself  constructive 
notice  of  its  contents.-^ 

In  a  system  of  jurisprudence  which  looks  to  established  prece- 
dents in  the  law  for  guidance  in  deciding  cases,  it  is  natural 
to  go  back  to  the  early  cases  on  the  subject  under  consideration. 
As  our  systems  are,  generally  speaking,  founded  on  the  common 
law  of  England,  it  is  quite  natural  that  in  deciding  cases  our 

24  See  §  53.  searches.     This  risk  of  constructive 

25  "It  is  true  that  a  search  care-  notice  is  sometimes  given  for  a 
lessly  made  may  fail  to  discover  a  reason  for  the  omission  to  search 
deed,  and  that  if  this  be  so,  the  at  all,  but  if  proper  care  be  used, 
purchaser  may  be  in  a  worse  po-  or  if,  under  the  now  rules,  an 
sition  than  if  the  register  had  not  official  search  be  applied  for,  this 
been  searched, — for  a  search  in  the  danger  can  be  quite  avoided."  Reg- 
Tegister  fixes  the  person  on  whose  istration  in  JNIiddlesex,  Brickdale, 
behalf  it  is  made  with  notice  of  all  page  3  (1892).  "It  has  been  de- 
deeds  registered  in  the  period  cided  that  entry  on  the  register 
searched — whether  actually  found  does  not  operate  as  notice,  but  the 
or  not,  whether  reported  to  the  so-  register  is  notice  if  searched." 
licitor  or  not,  whether  mentioned  Morris  on  Land  Registration,  page 
by  him   to  his  client  or  not.     This  50. 

rule     does    not    apply     to     official 


80  PUBLIC  RECORDS. 

courts  should  state  the  common  law  whenever  it  is  possible  to 
do  so.  Several  elaborate  reviews  of  the  old  English  cases  have 
been  made  with  the  hope  of  throwing  some  light  on  cases  which 
have  arisen  in  this  country,  involving  the  right  to  examine  the 
public  records,  but  it  must  be  confessed  that  they  have  failed 
to  elucidate  the  subject.  They  lack  uniformity  and  harmony 
quite  as  much  as  do  the  American  cases,  and  the  recording  acts 
of  the  ditferent  states  of  this  country  introduce  into  the  sub- 
ject an  element  which  is  totally  lacking  in  the  English  cases.-* 
In  passing  on  the  right  of  inspection  of  records,  courts  in  this 
country  have  assumed  quite  generally  that  there  was  some 
common  law  principle  governing  it,  and  they  have  reiterated 
the  statements  that  at  common  law  a  person  had  no  vested 
right  in  the  examination  of  public  records,  and  that  the  right 
to  inspect  required  an  interest  in  the  records  to  be  inspected. 
The  principles  as  stated  are  beyond  doubt  the  old  English  law 
on  the  subject  and  are  in  harmony  with  English  traditions  and 
prejudices  with  regard  to  the  secrecy  which  should  surround 
the  condition  of  titles  to  lands.  Historically  and  strictly  speak- 
ing, it  was  not  a  part  of  the  common  law  which  was  adopted 
by  many  of  the  states  as  a  part  of  the  law  of  the  land.  But 
it  is  really  quite  immaterial  to  inquire  whether  there  w^as  any 
common  law  on  the  subject,  or  to  inquire  into  the  exact  state 
of  the  common  law,  for  such  an  investigation  would  throw  no 
light  on  the  right  of  inspection  of  records  governed  by  modern 
statutes  and  recording  acts.  In  stating  the  conclusion  that  such 
an  inquiry  is  immaterial  it  was  said:  "At  common  law  court 
records  were  written  in  the  'ancient  and  immutable  court  hand' 
in  a  dead  language  which  few  except  the  officers  of  court  could 
read,  and  this  method  of  keeping  records,  which  practically 
made  them  sealed  books  to  the  public,  continued  down  to  the 
reign  of  George  II.  At  common  law  judgments  were  not  liens 
on  land,  and  the  necessity  which  now  exists  for  examining 
such   records   had   then   no    existence.""     And   again    it    was 

20  The  English  cases  are  reviewed  lish  cases  are  given  in  27  L.  R.  A. 

at  some  length  in  People  v.  Cornell,  82,      They  lend  little  or  no  aid   to 

47    Rarb.    .329.      State  v.    Williams,  tlie   determination   of   questions   re- 

41   N.  J.  L.  .322;   32  Am.  Rop.  219  lating  to   the   rights   of   abstracters 

and  State  v.  Grimes,         Nov.  ;  of  titles  to  search  the  records. 

84  Pac.   Rop.   1001;   ,5  L.   R.  A.    (n.  ^7  In   re  Chambers,   44    Fed.    Rep. 

8.)  545.    Copious  notes  on  the  Eng-  780    (1891). 


COJklMON  LAW.  81 

said:  ''During  the  crystallization  of  the  early  common  law  the 
records  in  England  were  in  the  official  language  which  had 
been  inflicted  upon  that  country  by  the  Ccesars,  and  which  was 
not  discernible  to  the  uneducated  masses  or  to  many  excepting 
officials  and  professional  conveyances. "  ^*  In  another  case  it 
was  said:  "No  authorities  at  common  law  can  throw  any  light 
on  the  question  of  the  right  of  an  abstracter  to  make  a  set 
of  tract  indices  from  the  records  under  a  statute  giving  any 
person  free  access.  The  practice  of  making  abstracts  of  title 
from  the  public  records  is  of  recent  origin, ' '  -^ 

§  87.  The  rule  in  the  absence  of  statute.  Whether  it  is  the 
common  law,  or  not,  it  is  an  old  and  well  established  rule  in 
England  that  a  person  has  a  right  to  inspect  and  take  copies 
of  all  such  books  and  records  as  are  of  a  public  nature,  in 
which  he  has  an  interest,  and  that  no  one  has  the  right  to 
inspect  public  records  unless  he  has  an  interest  in  the  matter 
to  be  examined.  It  was  adopted  by  the  courts  of  this  country, 
and  it  is  generally  spoken  of  as  the  rule  at  common  law.  So 
many  states  have  statutes  governing  the  inspection  of  public 
records  that  the  rule  in  this  country  is  stated  in  a  little  different 
way.  The  rule  here  is  that,  in  the  absence  of  statutory  pro- 
visions governing  the  right  to  inspect  the  public  records,  no 
one  has  the  right  to  inspect  them  unless  he  has  an  interest  in 
the  matter  to  be  examined.  Any  person  who  has  an  existing 
or  prospective  interest  in  information  to  be  obtained  from  public 
records  in  any  public  office  has  a  right  to  make  an  examination 
to  the  extent  of  his  interest.  It  is  not  the  unqualified  right 
of  every  citizen  to  inspect  the  public  records,  and  one  who 
claims  access  to  them  may  properly  be  required  to  show  that 
he  has  an  interest  in  the  books,  documents  and  papers  which 
he  desires  to  examine,  and  he  may  also  be  required  to  show  that 
the  inspection  is  for  a  legitimate  and  lawful  purpose.^"  The 
state,  as  an  entity  independent  of  its  citizens,  or  perhaps  as  a 
combined  whole  of  all  of  its  individuals,  has  a  property  right 
in  the  records  outside  of  and  beyond  that  vested  in  each  citizen. 
The  state  collects  fees  and  taxes  under  the  law  and  pays  the 

28  State  V.  Grimes,  Xev.  ;  29  Cormack   v.    Wolcott,   37    Kan. 

84  Pac.  Rep.   1061;  5  L.  l\.  A.    (n.       391;    15   Pac.   Rep.   245    (1887). 
s.)    545    (1900).  30  See  Mechem  on  Offices  and  Offi- 

cers, §  738.    See  §§  5G,  70,  84. 
6 


82  PUBLIC  RECORDS. 

county  officers,  jndfres,  clerks  and  assistants  in  the  various 
offices.  It  holds  tiie  product  of  their  labors  as  a  trustee  for 
all  persons  who  may  at  any  time  be  interested  in  them.  Its 
legislature  creates  the  records,  gives  force  and  effect  to  them, 
has  full  power  and  control  over  them,  and  has  authority  to 
determine  by  whom  and  under  what  conditions  they  may  be 
searched.  Where  the  legislature  has  not  extended  by  statute 
the  right  to  inspect  the  records,  it  must  be  confined  to  those 
who  have  an  interest  in  the  matter  to  be  examined.'^ 

g  88.  Dissent  from  the  doctrine  that  an  interest  is  necessary. 
There  i«  no  decision  holding  that,  in  the  absence  of  statutory 
provisions  granting  access  to  the  records,  one  may  examine 
them  without  having  an  interest  in  the  matter  under  examina- 
tion. But  the  doctrine  that  an  interest  is  necessary  as  a  basis 
for  the  right  of  inspection  has  been  severely  criticised  by  some 
judges.  In  one  case  it  was  said:  "I  do  not  think  that  any 
common  law  ever  obtained  in  this  free  government  that  would 
deny  to  the  people  thereof  the  right  of  free  access  to,  and 
public  inspection  of,  public  records.  They  have  an  interest 
always  in  such  records,  and  I  know  of  no  law,  written  or  un- 
written, that  provides  that,  before  an  inspection  or  examination 
of  a  public  record  is  made,  the  citizen  who  wishes  to  make  it 

31  Owens  V.  Woolridge,  22  Pa.  Co.  5  N.  E.  Rep.  971;  38  Am.  Rep.  213 

Ct.  Rep.  237;   8  Pa.  Dist.  Rep.  305  (1880).      Bean   v.    People,    7    Colo. 

(1899).     1  Dillon,  Mun.  Corp.   (4th  200;  2  Pac.  Rep.  909    (1883).     Cor- 

Ed.),   §  303;   People  v.  Cornell,  35  mack  v.   Wolcott,  37  Kan.  391;    15 

How.    Pr.    31     (18G8).       Brewer    v.  Pac.    Rep.   255    (1887).      Plielan  v. 

Watson,  71  Ala.  299;  4G  Am.  Rep.  State,  7G  Ala.  49    (1884).      Brewer 

318     (1882).       Colnon    v.    Orr,    71  v.    Watson,    61    Ala.    310     (1878). 

Cal.  43;    11  Pac.  Rep.  814    (188G).  State  v.  Williams,  41  N.  J.  L.  332; 

In    re    Caswell,    18    R.    I.    835;    29  32   Am.   Rep.   219    (1879).      Town- 

Atl.   Rep.  259;   27  L.  R.  A.  82;   49  send   v.    Register,    7   How.    Pr.    318 

Am.    St.    Rep.    814    (1893).      Daly  (1852).     In  re  McLean,  8  Reporter 

y.      Dimock,      55      Conn.      579-588  813   (1879).    Mechem  on  Odices  and 

(1887).      Buck   V.   Collins,    51    Ga.  Officers,   §§   738-739.     "Any   limita- 

391;     21     Am,     Rep.    23G     (1874).  tion   of   the   right   to   a   copy   of   a 

Land   Title   Co.   v.   Tanner,   99    Ga.  judicial   record  or  paper,  wlion  ap- 

470;    27    S.    E.    Rep.    727     (1896).  ])lied   for  by  any  person  having  an 

Randolph   v.  State,  82   Ala.  527;   2  interest    in    it,    would    probably    be 

So.  'Rep.    714     (188G).       Boylan   v.  deemed  repugnant  to  tlie  genius  of 

Warren,  39  Kan.  301  ;   18  Pac.  Rep.  American    institutions."       1    Green- 

174;    7    Am.    St.    Rep.    551     (1888).  leaf  on  Ev.,  §  471.     See  §  84. 
Webber  v.  Townley,  43   Mich.  534; 


COINIMON   LAW.  83 

must  show  some  special  interest  in  such  record.  I  have  a 
right,  if  I  see  fit,  to  examine  the  title  of  my  neighbor's  property, 
M'hether  or  not  I  have  any  interest  in  it,  or  intend  ever  to  have. 
I  also  have  the  right  to  examine  any  title  that  I  see  fit,  recorded 
in  the  public  offices,  for  the  purpose  of  selling  such  informa- 
tion, if  I  desire.  No  one  has  ever  disputed  the  right  of  a 
lawyer  to  enter  the  register's  office  and  examine  the  title  of 
his  client  to  land  as  recorded,  or  the  title  of  the  opponent  of 
his  client,  and  to  charge  his  client  for  the  information  so 
obtained.  "^^  In  this  case  the  statute  gave  free  access  to  the 
records  "to  all  persons  having  occasion  to  make  examination 
of  them  for  any  lawful  purpose,"  and  the  issue  was  whether 
an  abstracter,  who  had  been  employed  by  the  owner  of  prop- 
erty to  examine  in  regard  to  tax  sales,  had  the  right  to  do  so 
under  the  statute.  The  observations  made  in  the  opinion  about 
the  right  of  inspection  at  common  law  were  outside  of  the  issues 
and  are  not  supported  by  the  citation  of  any  authority.  The 
illustration  of  the  right  of  a  lawyer  to  make  an  examination 
is  predicated  on  his  employment  by  one  interested  in  certain 
property,  and  does  not  support  the  contention  that  anyone  has 
the  right  to  inspect  such  records  as  he  pleases.^^  In  another 
case  two  judges  dissented  from  the  opinion  of  the  court  and 
said:  "The  majority  of  the  court  in  determining  the  interests 
and  rights  of  the  applicants  and  the  duties  of  the  respondent 
to  some  extent  have  chosen  to  follow  the  ancient  English  com- 
mon law  rule  emanating  from  a  throne  to  its  subjects  instead 
of  the  modern  American  Republican-Democratic  doctrine  appli- 
cable to  a  government  'of  the  people,  by  the  people  and  for 
the  people.'  By  the  former  imperialistic  rule  the  keeper  of 
the  rolls  or  records  was  a  deputy  of  the  king  from  whom  all 
power  was  derived,  and  in  allegiance  to  whom  all  rights  were 
held,  who  was  only  permitted  to  allow  such  royal  subjects  to 
inspect  the  records  who  might  have  or  show  a  special  pecuniary 
interest  therein,  all  others  being  excluded  therefrom,  except 
where  public  interests  Avere  involved.  "While  the  modern  popular 
doctrine  is  that  the  clerk,  the  custodian  of  the  records,  is  the 

32  Burton  v.  Tuite,  78  Mich.  363;  of  the  broad  arguments  and  mis- 
44  N.  W.  Rep.  282;  7  L.  R.  A.  73  leading  statements  which  tend  to 
(1889).  confuse    the    subject    under    consid- 

33  This   quotation  is   an   example  eration.     See  §§  53,  85. 


84  PUBLIC  RECORDS. 

servant  of  the  people,  chosen  by  them  as  their  trustee  to  have 
charge  of  such  records  in  their  behalf,  and  to  hold  them  open 
for  their  inspection  at  reasonable  times,  under  reasonable  regu- 
lations, without  let,  interference  or  hindrance  on  the  part  of 
such  clerk,  or  inquiry  as  to  the  purpose  or  object  of  such  in- 
spection. Every  citizen,  tax  payer  and  voter  has  the  presump- 
tive right  of  such  inspection  as  adhering  to  his  sovereignty, 
which  the  clerk  cannot  deny  him  unless  he  can  show  that  the 
object  of  the  inspection  is  for  illegitimate,  improper  or  scandal- 
ous purposes."  ^* 

§  89.  Comment  on  dissent  from  doctrine  of  interest.  While 
it  is  always  pleasant  to  be  told  of  our  rights  as  free  American 
citizens,  we  can  scarcely  accept  the  suggestion  that  the  require- 
ment of  an  interest  as  a  basis  for  the  right  to  examine  public 
records  is  in  any  way  repugnant  to  the  genius  of  American 
institutions.  A  courthouse  is  a  public  building,  but  a  citizen 
is  not  on  that  account  entitled  to  use  it,  or  a  part  of  it,  as  a 
private  office.  A  park  is  a  public  place  and  yet  a  citizen  may 
not  occupy  a  part  of  it  to  camp  on.  One  who  has  no  interest 
in  the  records, — a  stranger  to  them, — has  no  inherent  right 
to  use  them,  to  occupy  space  in  a  public  office  in  searching 
them,  and  to  require  the  time  of  a  public  officer  in  guarding 
them,  in  order  that  he  may  carry  on  some  private  work  or  carry 
out  some  private  purpose.  The  rule  requiring  an  interest  in 
them  does  not  offend  the  dignity  of  the  citizen,  and  it  is  just 
and  fair.  Nine-tenths  of  all  the  examinations  of  records  are 
made  under  this  rule,  even  in  those  states  in  which  free  access 
to  the  records  is  given  by  statute.  An  abstracter  making  an 
abstract  of  title  for  an  interested  person,  and  a  lawyer  con- 
sulting the  records  in  the  interest  of  his  client,  are  subrogated 
to  the  rights  of  the  persons  employing  them  and  come  within 
the  rule.  These  and  kindred  examinations  constitute  nearly 
all  the  work  done  in  the  examination  of  records,  for  the  work 
done  on  tract  indices  is  comparatively  small. 

§  90.  Rule  too  restricted  in  a  mechanical  way.  The  rule  re- 
quiring an  interest  as  the  basis  for  the  right  to  search  the 
records  is  broad  enough  to  carry  out  the  design  of  the  creation 

34  Payne  v.  Staunton,  55  W.  Va.  202,  p.  214;  46  S.  E.  Rep.  727 
(1904). 


INTEREST  NOT  REQUIRED.  85 

of  the  records,  and  it  is  generous  enough  to  protect  the  dignity 
and  property  rights  of  the  citizen.  The  great  trouble  with  it 
is  that  it  is  now  too  narrow  and  restricted  in  a  mechanical 
way.  The  volumes  of  the  records  have  become  so  numerous 
that  the  rule  is  primitive  and  impractical.  The  indices  of 
grantors  and  grantees  are  congested  and  inefficient,  and  the 
information  contained  in  the  records  lies  hidden  and  inacces- 
sible. Abstracters  and  lawyers,  as  the  representatives  of  inter- 
ested persons,  are  unable  to  search  the  records  with  rapidity, 
certainty  or  security  to  the  interests  involved.  It  is  impossible 
for  them  to  follow  the  chain  of  title  and  to  know  that  they 
have  found  all  the  information  contained  in  the  records,  bearing 
on  the  title  under  examination.  A  tract  index  to  the  records 
has  become  absolutely  necessary  in  most  counties.  It  must  be 
made  at  public  expense,  or  the  law  must  be  changed  so  that 
those  having  no  interest  in  the  records  may  examine  them  and 
make  it  as  a  matter  of  private  enterprise.  It  is  expensive  to 
prepare  and  keep  down  to  date  a  set  of  tract  indices,  and  the 
services  of  experts  are  required  in  laying  out  the  indices  and 
conducting  the  work.  Down  to  this  time,  public  tract  indices 
have  been  successful  only  after  a  fashion.  This  is  mild  and 
vague  commendation,  but  more  cannot  be  said  truthfully.  Leg- 
islatures have  usually  adopted  the  other  plan  and  have  enlarged 
the  right  of  search  by  opening,  the  records  to  the  inspection 
of  any  person,  or  by  giving  in  apt  language  to  any  person  the 
right  to  make  such  indices.^^ 

§  91.  Salutary  effect  of  doing  away  with  interest.  A  statute 
providing  that  the  records  shall  be  open  to  the  inspection  of 
any  person  has  also  this  salutary  effect,  that  it  does  away  with 
the  necessity  of  inquiry  by  the  courts  into  the  question  as  to 
whether  the  person  desiring  inspection  of  the  records  has  such 
an  interest  as  entitles  him  to  it.  The  decisions  on  this  question 
are  numerous,  both  in  this  country  and  in  England,  and  they 
are  so  lacking  in  uniformity  that  it  is  not  possible  to  lay  do^vn 
any  broad  rule  governing  the  sufficiency  of  the  interest  to 
support  the  right  of  search.  This  is  especially  true  of  records 
not  controlled  by  the  recording  laws,  such  as  records  relating 
to  revenues,  fees,  elections  and  official  conduct.^" 

35  See  §§  100,  137.  202;    4G    S.    E.    Rep.    727     (1004). 

36  Payne  v.  Staunton,  55  W.  Va.       State   v.    Cummins,   7G    Iowa     136; 


86  PUBLIC  RECORDS. 

§  02.  The  general  rule  can  only  be  changed  by  the  legislature. 
The  rule  is  well  and  thoroughly  established  uuder  the  general 
law  that  no  one  has  a  right  to  examine  public  records  unless 
he  is  interested  in  them,  presently  or  prospectively,  and  that 
one  interested  has  a  right  to  examine  them  to  the  full  extent 
of  his  interest.  "Whether  or  not  it  should  be  abridged  or  ex- 
tended is  a  question  of  governmental  policy  to  be  decided  by 
the  legislature  and  not  by  the  courts.^^ 

§  93.  Some  decisions  under  the  general  law.  A  statute  pro- 
vided that  every  coroner  should  reduce  to  writing  and  return 
to  the  clerk  of  the  court  in  the  county  the  testimony  of  all 
witnesses  examined  in  any  inquest,  with  the  finding  and  all 
certificates  sent  him  by  the  medical  examiner  in  the  case.  In 
construing  this,  the  court  said:  *'The  legislature  required  that 
such  testimony  should  be  reduced  to  writing  by  a  sworn  officer 
and  preserved  for  future  reference.  It  is  enough  for  our  pres- 
ent purpose  to  say  that  it  is  a  public  document  relating  to 
matters  of  public  interest  and  required  by  law  to  be  kept  by 
a  public  officer  who  is  the  custodian  of  the  records  of  judicial 
proceedings  and  other  public  documents.  The  statute  is  silent 
in  respect  to  the  purpose  for  which  such  writings  are  preserved 
and  the  use  to  be  made  of  them  and  by  whom.  In  the  absence 
of  any  limitation  or  restriction  we  must  assume  that  it  was 
intended  that  they  might  be  examined  by  any  and  all  persons 
interested  in  the  subject-matter.  We  do  not  consider  that  we 
are  justified  in  saying  that  they  may  be  inspected  by  one 
person  and  not  by  another.  In  the  absence  of  legislation  to 
that  effect  we  cannot  say  that  they  are  for  the  exclusive  use 
of  one  person  or  officer,  or  that  any  one  person  or  class  of 
persons  may  not  inspect  or  use  them. ' '  ^^ 

The  judicial  records  of  the  state  should  always  be  accessible 

40  X.  W.   Rep.    124    (1888).     State  State  v.  Williams,  41  N.  J.  L.  332; 

V.    Donovan,    10    N.    Dak.    200;    86  32  Am.   Rep.  219    (1870). 

N.  \V.   Rep.  709    (1001).     Marsh  v.  37  State   v.  Grimes,         Nev. 

Sanders,   110   La.   72();   34   So.   Rep.  84  Pae.  Rep.   lOGl;   5  L.  R.  A.    (n. 

752    (1903).      Clay   v.    Rallard,    87  s.)    545    (190G).     Cormack  v.  Wol- 

Va.  787;  13  S.  E.  Rep.  202   (1891).  cott,    39    Kan.    391;    15    Pac.    Rep. 

Brown     v.     County    Treasurer,     54  245    (1887). 

Mich.   132;   19  N.  W.  Rep.   778;   52  38  Daly  v.  Dimock,  55  Conn.  579- 

Am.    Rep.    800     (1884).       State    v.  588;    12   Atl.    Rep.   405    (1887). 

Hoblitzelle,    85    Mo.    C24     (1885). 


GENERAL  LAW.  87 

to  the  people  for  all  proper  purposes  under  reasonable  re- 
strictions as  to  the  time  and  mode  of  examining  them,  but  no 
one  has  a  right  to  examine  or  obtain  copies  thereof  from  mere 
curiosity  or  for  the  purpose  of  creating  public  scandal.  In 
a  case  so  holding  it  was  said:  "It  is  clearly  within  the  rule  to 
hold  that  no  one  has  a  right  to  examine  or  obtain  copies  of 
public  records  from  mere  curiosity  or  for  the  purpose  of 
creating  public  scandal.  To  publish  broadcast  the  painful  and 
sometimes  disgusting  details  of  a  divorce  case  not  only  fails 
to  serve  any  useful  purpose  in  the  community,  but  on  the 
other  hand  directly  tends  to  the  demoralization  and  corruption, 
thereof  by  catering  to  a  morbid  craving  for  that  which  is  sen- 
sational and  impure.  The  judicial  records  of  the  state  should 
always  be  accessible  to  the  people  for  all  purposes  under 
reasonable  restrictions  as  to  the  time  and  mode  of  examining 
the  same,  but  they  should  not  be  used  to  gratify  private  spite 
or  promote  public  scandal,  and  in  the  absence  of  any  statute 
regulating  this  matter,  there  can  be  no  doubt  as  to  the  power 
of  the  court  to  prevent  such  improper  use  of  its  records.  AVe 
advise  the  clerk  that  he  should  not  furnish  a  copy  of  the  case 
referred  to  for  the  purpose  named"  (for  publication  or  other- 
wise ).^''  In  the  matter  of  the  inspection  of  public  records, 
public  interest  is  entitled  to  more  consideration  than  public 
curiosity.^" 

While  the  books  and  documents  of  a  public  office  are  the 
property  of  the  public  and  are  preserved  for  public  uses  and 
purposes,  it  is  not  the  unqualified  right  of  every  citizen  to  de- 
mand access  to  and  inspection  of  them.  To  entitle  one  to  an 
inspection  of  such  books  and  documents,  he  must  show  that  he 
has  an  interest  in  consulting  them  and  that  he  desires  an 
inspection  of  them  for  a  legitimate  purpose.*^ 

39  In   re    Caswell,   requesting  ad-  Rep.    731    (1888).      Schmedding  v. 

vice  regarding  his  duty  to  furnish  May,   85   Mich.    1 ;    48   N.   W.   Rep. 

a    copy    of    the    proceedings    in    a  201    (1901).      Crowley  v.   Pulsifer, 

divorce    case    "for    publication    or  137  Mass.  392    (1884). 

otherwise,"   18      R.   L    835;    27   L.  4o  Owens     v.     Woolridge,     8     Pa. 

R.    A.    82;    29    AtL    Rep.    259;    49  Dist.  Rep.  305    (1899). 

Am.    St.    Rep.    814     (1893).        See  4i  Brewer  v.  Watson,  71  Ala.  299 ; 

Colnon  V.  Orr,  71  Cal.  43;    11  Pac.  46  Am.   Rep.   318    (1882).      Colnon 

Rep.    814     (1886).       Park    v.    Free  v.  Orr,  supra. 
Press  Co.,  72  Mich.  560;  40  N.  W. 


88  PUBLIC  RECORDS. 

A  citizen  and  taxpayer  of  the  state,  desiring  to  examine  bills 
and  vouchers  on  tile  in  a  public  office  for  the  purpose  of 
ascertaining  alleged  irregularities  in  the  allowance  and  payment 
of  claims  against  the  state,  in  order  that  reforms  may  be 
inaugurated,  has  sufficient  interest  to  entitle  him  to  such  in- 
spection as  a  matter  of  right/- 

42  Clement  v.  Graham,  78  Vt.  75  S.  W.  Rep.  948  (1903).  State 
290;  63  Atl.  Rep.  146  (1906).  See  V.  King,  154  Ind.  621;  57  N.  E. 
State  V.  Williams,  110  Tenn.  549;       Rep.  535  (1900). 


CHAPTER  IX. 

BIGHT  OF  ABSTRACTER   TO   SEARCH  THE  RECORDS. 

§  94.  Rights  of  abstracter  as  agent  of  interested  person.  Un- 
der the  general  law,  that  is  to  say,  in  the  absence  of  statute 
extending  or  qualifying  the  right,  an  abstracter  who  has  been 
employed  by  an  interested  person  to  make  an  abstract  of  title 
to  certain  lands  may  examine  or  copy  any  record  which  affects 
or  may  possibly  affect  the  title,  and  may  search  the  records  in 
any  public  office  to  discover  the  existence  or  non-existence  of 
anything  of  record  which  may  affect  the  title.  He  may  make 
the  search  from  the  index  of  grantors  and  grantees,  from  the 
entries  on  any  tract  index  to  which  he  may  have  access,  or 
from  information  obtained  from  any  other  source.  He  has  a 
right  to  use  any  index  which  is  required  by  law  to  be  kept 
in  the  office  and  is  in  any  proper  sense  a  part  of  the  public 
records.  A  statute  declaring  that  such  indices  shall  be  open 
to  the  examination  of  the  public  does  not  extend  the  right  of 
an  interested  person  to  inspect  such  indices,  but  merely  re- 
moves the  necessity  for  an  interest.  In  discussing  the  right 
of  an  abstracter,  as  an  agent,  to  examine  certain  indices  for 
the  purpose  of  making  an  abstract  of  title,  it  was  said:  "The 
question  presented  is  to  what  extent  a  company  engaged  in 
the  business  of  examining  titles  and  certifying  thereto  may 
have  access  to  and  use  the  indices  and  cross  indices  and  the 
judgment  records  prepared  by  the  clerks  of  the  United  States 
courts.  The  statute  declares  that  they  'shall  at  all  times  be 
open  to  the  inspection  and  examination  of  the  public.'^  This 
company  as  one  of  the  public  has  a  right  to  this  inspection 
and  examination.  It  has  no  monopoly  therein,  and  cannot 
interfere  with  the  clerk  or  his  assistants  in  the  discharge  of 
their  duties,  or  with  the  equal  rights  of  other  persons  to  such 
inspection  and  examination.     But  this  limitation   is  expressly 

125   Stat,  at  L.   358,   chap.   729,U.  S.  Comp.  Stat.  1901,  p.  701. 

89 


90  PUBLIC  KECORDS. 

provided  for  by  the  second  of  the  two  restrictions  imposed 
in  the  decree.  Under  this  decree  the  clerk,  as  custodian,  can 
make  such  reasonable  regulations  as  will  secure  to  him  and 
his  assistants  full  use  of  all  the  books  and  records  of  his  office, 
— which,  of  course,  is  a  primary  matter  to  be  considered, — 
and  also  will  guard  against  any  tampering  with  or  injury  to 
those  books  and  records,  and  at  the  same  time  give  to  the 
plaintiff  and  others  access  to  the  indices.  From  the  testimony 
it  is  clear  that  there  can  be  no  difficulty  on  the  score  of  time 
or  otherwise  in  affording  to  this  company  and  all  others  in- 
terested every  proper  facility  for  inspection  and  examination. 
Indeed,  it  is  not  contended  that  there  is  any  trouble  in  that 
direction.  *  *  *  Very  likely,  at  the  time  of  the  passage 
of  the  act,  the  monopolizing  of  the  business  of  examining  titles 
by  one  or  two  corporations  was  not  contemplated.  The  work 
was  scattered  among  the  separate  members  of  the  bar,  each  one 
for  his  ow^n  client  examining  the  title  to  property  in  which 
such  client  was  interested.  But  if  congress  provided  and  in- 
tended to  provide  that  one,  interested  in  the  title  to  real 
estate  and  desiring  an  examination  of  judgment  liens  thereon, 
should,  either  by  himself  or  agent,  have  access  to  these  indices, 
that  intent  and  that  provision  are  not  changed  by  the  fact 
that  the  business  has  passed  from  the  many  to  a  few.  The 
same  right  of  inspection  exists  vv'hether  one  is  examining  only 
the  title  to  a  single  piece  of  real  estate  or  the  title  to  a 
hundred.  The  inspection  is  an  assistance  to  the  examination 
of  titles  and  obviously  congress  intended  that  these  indices 
should  be  open  to  the  inspection  of  those  rightfully  making 
such  examinations.  Whether  parties  have  a  right  to  make 
copies  in  full  of  these  indices  is  not  a  question  before  us,  for 
the  decree  carefully  limits  the  right  of  inspection  to  a  trans- 
action or  transactions  at  the  time  current  or  depending.  So 
that  all  that  this  plaintiff  is  allowed  by  this  decree  is  an 
inspection  and  examination  of  these  indices,  so  far  as  may 
be  necessary  to  assist  in  the  examination  of  a  title  for  which 
it  is  then  employed." - 

§  95.     Abstracter  as  ag^ent,  continued.     When  an   abstracter 

2  Bell  V.  Title  Co.,  180  U.  S.  131;       Fed.    Rpp.    19.       See   also    105    Fed. 
2.3  Sup.  Ct.   Hep.  .-)09    (inOO).     See       Rep.  548  and   110   Fed.  Rep.  829. 
Commonwealth  Title  Co.  v.  Bell,  87 


CORPORATION  AS  ABSTRACTER.  91 

has  been  employed  to  examine  the  title  to  a  particular  piece 
of  property,  he  has  an  interest  in  the  examination  as  the  agent 
of  his  employer,  and  he  falls  within  the  general  rule  which 
entitles  him  to  an  inspection  of  the  records  on  account  of 
his  interest.  It  has  been  held  in  several  cases  that  while,  under 
a  statute  giving  the  right  of  inspection  and  examination  to 
**any  person,"  an  abstracter  is  not  entitled  to  the  general  use 
of  the  public  office  to  make  a  set  of  tract  indices  to  the  public 
records,  he  is  entitled  to  make  from  the  records  an  abstract  to 
the  lands  in  which  his  principal  is  presently  or  prospectively 
interested.  This  right  is  based  on  the  ordinary  rules  of  agency.^ 
It  is  not  necessary  that  one  intending  to  deal  with  a  certain 
piece  of  land  shall  inspect  personally  the  public  records.  He 
may  do  this  by  his  agent  or  attorney,  and  a  person  who  pre- 
pares an  abstract  of  title  from  the  records  for  examination  by 
such  intending  dealer  is  the  agent  of  the  latter.  In  perform- 
ing the  labor  the  abstracter  is  subrogated  to  all  the  rights  of 
his  principal.* 

§  96.     Right  of  incorporated  company  to  search  records.     A 

corporation  making  abstracts  of  title  and  insuring  titles  to 
real  estate  is  entitled  to  the  same  right  of  access  to  and  examina- 
tion of  the  public  records  as  an  individual.  "When  employed 
to  examine  the  title  to  any  particular  piece  of  property,  such 
corporation  is  subrogated  to  the  right  of  its  employer  to  have 
such  access,  and  the  fact  that  it  may  issue  a  certificate  of  the 
result  of  the  examination  for  a  compensation,  or  that  it  may 
issue  an  insurance  policy  on  the  title  to  the  property  in  question 
does  not  detract  from  such  right  of  access.^  Abstract  makers 
t 

3  Webber    v.    Townley,    43    Mich.       Atl.    Rep.    222     (1895).       State    v. 
534;    5    N.    W.    Rep.   971;    38   Am.       Grimes,         Nev.  ;   84  Pac.  Rep. 

Rep.  213  (1880).  Bean  v.  People,  -■  1001;  5  L.  R.  A.  (n.  s.)  545 
7     Colo.     200;     2     Pac.     Rep.     909        (1906). 

(1883).    Randolph  V.  State,  82  Ala.  *  Stewart  v.  Walker,        Neb.         ; 

627;   2  So.   Rep.  714;   60  Am.  Rep.       113  N.  W.  Rep.  814    (1907). 
761    (1886).     Newton  v.  Fisher,  98  5  West   Jersey   Title    Co.    v.   Bar- 

N.  C.  23;  3  S.  E.  Rep.  823  (1887).  ber,  49  N.  .J.  Eq.  474;  24  Atl.  Rep. 
Boylan  v.  Warren,  39  Kan.  301;  381  (1S92).  Barber  v.  Title  Co., 
18  Pac.  Rep.  174;  7  Am.  St.  Rep.  53  N.  J.  Eq.  158;  32  Atl.  Rep.  222 
551  (1888).  Lum  v.  McCarty,  39  (1895).  Bell  v.  Title  Co.,  189  U. 
N.  J.  L.  287  (1877).  Barber  v.  S.  131;  23  Sup.  Ct.  Rep.  569 
Title    Co.,    53    N.    J.    Eq.    158;    32       (1903). 


92  PUBLIC  RECORDS. 

and  title  companies  are  a  part  of  the  public  and  are  entitled 
to  the  same  privileges  as  other  persons  to  the  reasonable  use 
of  the  records  under  the  law,  whether  statutory  or  general. 
In  one  ease®  it  was  said:  "But  it  is  said  that  while  natural 
persons  may  have  this  right,  corporations  have  not,  because 
they  are  neither  'persons'  or  any  part  of  the  'public,'  within 
the  meaning  of  these  words  in  the  acts  of  congress  relating  to 
court  records.  Business  pursuits  of  all  kinds  are  now  largely 
conducted  by  corporations.  They  sell  goods,  lend  money,  fur- 
nish abstracts  of  title  and  carry  on  many  other  pursuits  which 
make  it  necessary  for  them  to  be  constantly  advised  of  the 
contents  of  the  judgment  records  in  the  courts.  A  corporation 
must  act  by  its  officers  or  agents,  who  are  citizens,  and  no 
citizen  loses  any  of  his  rights  as  a  citizen  because  he  is  a 
member  of,  or  agent  for  a  corporation ;  and  he  has  a  right  to 
search  the  record  for  his  own  information  or  as  agent  for 
another,  and  with  a  view  of  imparting  the  information  he 
acquires  to  his  principal,  be  that  principal  a  natural  person 
or  a  corporation."  In  considering  the  right  of  a  certain  ab- 
stract company  to  examine  indices  to  certain  records,  it  was 
said:  "This  company  as  one  of  the  public  has  a  right  to  this 
inspection  and  examination.  *  *  *  Very  likely,  at  the  time 
of  the  passage  of  the  act,  the  monopolizing  of  the  business  of 
examining  titles  by  one  or  two  corporations  was  not  contem- 
plated. The  work  was  scattered  among  the  separate  members 
of  the  bar,  each  one  for  his  own  client  examining  the  title  to 
property  in  which  such  client  was  interested.  But  if  congress 
provided  and  intended  to  provide  that  one,  interested  in  the 
title  to  real  estate  and  desiring  an  examination  of  judgment 
liens  thereon,  should,  either  by  himself  or  agent,  have  access 
to  these  indices,  that  intent  and  that  provision  are  not  changed 
by  the  fact  that  the  business  has  passed  from  the  many  to  a 
few.  The  same  right  of  inspection  exists  whether  one  is  ex- 
amining only  the  title  to  a  single  piece  of  real  estate  or  the 
title  to  a  hundred."^ 

§  97.     Charter  rights  of  a  corporation.     But  an  incorporated 
compan}^  whether  incorporated  under  the  gi^neral  laws  of  the 

c  In    ro    Chambera,   44   Fed.    Rep.  7  Bell  v.  Title  Co.,  189  U.  S.  131; 

780    (1891).  23  Sup.  Ct.  Rep.  569    (1903). 


CORPORATION  AS  ABSTRACTER.  93 

state  or  under  a  special  act  of  the  legislature,  has  no  greater 
right  or  privilege  to  inspect  and  examine  public  records  than 
an  individual  citizen.  The  power  and  purpose  to  search  the 
public  records,  set  forth  in  the  articles  of  incorporation  of 
the  company,  convey  to  it  no  special  right  of  search  beyond 
that  which  is  accorded  to  any  natural  person.^  AVhere  a  specigd 
act  of  the  legislature  granted  to  certain  persons  "certain  priv- 
ileges in  making  an  abstract  of  the  records  of  deeds  and  mort- 
gages"  in  a  certain  county,  during  such  time  "as  may  be 
necessary  to  complete  the  work  now  commenced  by  said  firm," 
it  was  held  that  the  act  was  incapable  of  enforcement.  The 
court  said:  "The  enjoyment  of  this  privilege  was  expressly 
limited  by  the  terms  of  the  act  to  such  time  '  as  may  be  necessary 
to  complete  the  work  now  commenced  by  said  firm,'  and  the 
act  discloses  neither  the  character  of  work  which  was  in  proc- 
ess of  completion  at  the  time  of  the  passage  of  the  act,  nor 
does  it  indicate  within  what  time  it  is  to  be  completed.  So 
that  plaintiffs  in  error  claiming  under  the  act,  even  if  it  be 
constitutional,  must  show,  in  order  to  entitle  them  to  the 
enjoyment  of  the  special  privilege  granted  by  the  act,  that  the 
enjoyment  of  that  privilege  at  this  time  is  necessary  to  the 
completion  of  the  work  commenced  by  that  firm  at  the  time  of 
the  passage  of  the  act.  Statutes  granting  special  privileges  to 
individuals  are  to  be  strictly  construed,  nor  are  they  to  be 
extended  by  implication  beyond  the  express  provisions  of  the 
law  granting  them.  This  being  true,  the  provisions  of  the  act 
in  question  can  in  no  event  be  so  construed  as  to  extend  their 
operation  to  records  not  in  existence  at  the  time  of  its  passage, 
and  consequently  it  cannot  confer  any  right  of  making  for  the 
purpose  above  stated  (making  a  set  of  abstract  books)  abstracts 
of  records  made  in  or  after  (1881)."^ 

§  98.     Corporations  as  abstracters.    In  a  late  case  ^°  it  was  said : 
"The  business  of  furnishing  abstracts  prepared  by  professional 

8  People   V.    Richards,    99    N.    Y.  Co.,  53  N.  J.  Eq.  158;  32  Atl.  Rep. 

620;    1    N.    E.    Rep.    258     (1895);  222    (1895). 

People     V.     Reilly,     38     Hun      429  » Land  Title  Co.  v.  Turner,  99  Ga. 

(188G);    Belt   v.    Abstract    Co.,    73  470;  27  S.  E.  Rep.  727    (1896). 

Md.   289;   20  Atl.  Rep.   982;    10  L.  lo  State  v.   Grimes,         Nev,          ; 

R.  A.  212    (1890),     Barber  v.  Title  84  Pac.  Rep.   lOGl;   5  L.  R.  A.    (n. 

s.)    545    (1906). 


94  PUBLIC  RECORDS. 

and  expert  searchers,  and  of  guarantying  titles  is  a  legitimate 
one,  and  meets  a  want  of  cautious  purchasers  desiring  to  be 
well  assured  and  guarantied  regarding  titles.  The  tendency 
in  large  communities  is  to  concentrate  the  service  which  pre- 
viously was  performed  by  attorneys  and  convej'^ancers.  Per- 
sons having  or  seeking  to  acquire  an  interest  in  property  may 
examine  the  records  for  themselves  or  exercise  their  choice 
in  employing  an  attorney  or  some  one  to  search  for  them,  or 
they  may  have  the  abstracting  company  furnish  an  abstract  or 
guaranty  the  title.  *  *  *  ^Vhether  changed  conditions  and 
growing  demands  of  the  community  make  it  desirable  to  extend 
to  abstract  companies  the  privilege  of  copying  all  the  records 
relating  to  titles  and  of  duplicating  all  of  these  in  the  offices 
of  the  county  recorders,  is  a  question  of  policy  and  expediency 
for  the  legislature,  and  not  for  the  courts  to  determine."  In 
another  case  it  was  said:  "These  abstract  offices,  if  properly 
conducted,  are  of  great  public  convenience,  because  for  well- 
known  reasons  they  are  usually  the  only  place  where  abstracts 
of  title  can  be  conveniently  obtained.  It  is  essential  to  the 
convenient  and  proper  transaction  of  the  business  that  those 
engaged  in  it  provide  themselves  with  these  tract  indexes. 
This  can  only  be  done  by  examination  of  the  records  in  the 
register's  office,  and  making  copies  or  abstracts  of  the  same. 
The  right  to  do  this  had  been  usually  exercised  and  conceded 
without  question.  But  in  some  instances  the  right  had  been 
denied,  and  disputes  and  even  litigation  over  the  matter  had 
arisen  between  the  registers  and  the  abstract  men.""  The 
business  of  making  abstracts  of  title,  w'hether  by  individuals 
or  by  corporations,  is  a  well  recognized  and  lawful  business 
which  has  been  specifically  recognized  by  statute.^-  When  a 
title  company  searches  the  records  as  an  abstracter,  it  assumes 
the  same  liability  for  negligence  and  want  of  skill  as  an  in- 
dividual does."  Large  corporations  doing  an  abstract  business, 
with  ample  capital  and  a  complete  set  of  tract  indices,  are  of 

11  State  V.  Rachac,  37  Minn.  372;  1 3  Economy  Ass'n  v.  Title  Co.,  64 
35  N.  W.  Rep.  7   (1887).  X.    J.    L.    27;    44    Atl.    Rep.    854 

12  State  V.  Scow,  93  Minn.  11;  (1899).  Ehmer  v.  Title  Co.,  156 
100  N.  W.  Rep.  382  (1904);  Bean  N.  Y.  10;  50  N.  E.  Rep.  420 
V.  People,  7  Colo.  200;  2  Pac.  Rep.  (1898),  affirming  34  N.  Y.  Supp. 
909    (1883).     State  v.  Racliac,  su-  1132    (1895). 

pra. 


RIGHT  TO  IklAKE  INDICES.  95 

great  public  security  and  convenience.  Persons  desiring  ab- 
stracts of  title  may  procure  them  more  easily,  safely  and 
cheaply  through  them  and  the  professional  assistants  employed 
by  them  than  in  any  other  way.  Considering  the  functions 
which  they  perform,  especially  in  the  cities,  it  may  be  said 
that  they  are  to-day  the  most  important  and  effective  private 
agencies  in  this  country  in  dealing  with  real  estate. 

§  99,  Right  of  abstracter  to  make  indices  to  the  records.  In 
the  absence  of  statutory  provisions  conferring  the  right,  an 
abstracter  is  not  entitled  to  examine  and  take  memoranda  from 
all  the  county  records  for  the  purpose  of  compiling  a  set  of 
tract  indices.  Long  and  laborious  opinions  have  been  written 
in  declaring  this  rule,  and  many  of  the  statements  and  argu- 
ments in  these  opinions  are  confused  and  confusing.  The 
reasons  for  the  rule  are  simple.  A  person  who  is  not  interested 
in  the  records  is  a  stranger  to  them.  He  has  no  right  to  use 
a  public  office  as  a  work  room  and  to  require  the  service  of  a 
public  officer  in  guarding  records  while  he  examines  them  in 
compiling  books  for  his  private  use.  The  business  of  an  ab- 
stracter is  in  some  respects  of  a  similar  character  to  that  of 
the  officer  and  in  opposition  to  and  in  rivalry  with  some  of 
the  business  done  by  the  officer,  and  when  an  abstracter  has 
no  interest  in  the  records,  he  may  not  be  permitted  to  interfere 
with  the  fees  and  emoluments  of  the  office.  A  public  office  is 
the  right  to  exercise  public  employment  and  to  take  the  fees 
prescribed  by  law  for  services  which  the  one  holding  it  may 
be  called  on  by  members  of  the  public  to  perform,  and  a  person 
who  has  no  special  interest  in  matters  pertaining  to  the  office 
has  no  right  to  interfere  with  it.  These  are  the  legal  reasons 
why  a  person  having  no  interest  may  not  examine  the  public 
records  and  make  an  index  to  them,  in  the  absence  of  statutory 
authority. 

The  right  to  search  public  records  has  grown  in  importance 
during  the  past  forty  years,  and  it  is  probable  that  at  this 
time  there  are  in  every  state  statutes  governing  it.  There  is 
only  one  case  involving  the  right  of  an  abstracter  to  make 
an  index  to  the  records,  in  which  no  statute  of  the  state  is 
cited,  and  the  opinion  in  that  case  is  sufficiently  in  harmony 
with  the  general  law  to  invoke  the  presumption  that  there  was 
no   statute   governing   inspection    of   records.     In   that   case   it 


96  PUBLIC  RECORDS. 

was  said:  "All  persons  have  the  right  to  inspect  these  records 
freely  and  without  charge,  and  all  persons  who  may  desire  to 
do  so  can  get  copies  by  paying  the  prescribed  fees.  It  is  the 
duty  of  the  register  to  keep  them  open  to  the  inspection  and 
examination  of  all  who  may  desire  to  inspect  and  examine  them, 
and  for  this  there  is  no  fee;  it  is  his  duty  to  furnish  copies 
to  all  who  require  them  and  will  pay  the  fees  allowed.  Perhaps, 
in  addition  to  this,  so  long  and  so  universal  has  been  the  custom 
that  it  may  be  said  to  be  the  right  of  lawyers  and  others  needing 
them  to  take  such  reasonable  memoranda  as  may  not  interfere 
with  the  rights  and  duties  of  the  register,  and  we  have  never 
known  this  refused.  We  know  of  no  law  that  requires  the 
register  in  this  respect  to  do  more.  No  one  has  the  right, — to 
use  the  language  of  the  learned  judge  in  the  court  below, — 
*to  make  copies  or  abstracts  of  the  entire  records  of  the  office, 
including  those  instruments  in  which  the  person  so  desiring  to 
make  abstracts  is  not  at  the  time  interested,  but  simply  antici- 
pates that  he  will  at  some  time  be  interested,  and  abstracts 
which  he  desires  to  make  for  merely  speculative  purposes.  In 
this  view  the  plaintiff  w'ould  be  entitled  to  every  facility  f(U' 
the  legitimate  prosecution  of  his  business  by  access  to  the 
records  for  the  examination  of  instruments  registered,  but  the 
court  is  not  satisfied  of  his  right  to  make  an  abstract  of.  all 
transfers  of  real  and  personal  property  for  the  year  1886, 
without  having  an  interest  in  the  same,  for  the  prosecution  of 
his  business,  or  paying  any  fee  therefor."^* 

14  Newton  v.  Fisher,  98  N.  C.  20;       Scribner  v.  Chase,  27   111.  App.  36 
3  S.  E.  Rep.  823   (1887).     See  also       (1888). 


CHAPTER  X. 

RIGHT    TO    MAKE    INDICES    UNDER    STATUTORY    PROVISIONS;    LIMITED 

CONSTRUCTION. 

§  100.  Different  constructions  given  to  similar  statutes.  The 
rule  is  well  settled  that,  in  the  absence  of  enabling  legislation, 
an  abstracter  is  not  entitled  to  make  an  index  to  the  public 
records,  and  there  is  no  dissent  from  it.  The  only  question 
about  which  there  is  any  disagreement  among  the  authorities 
is  as  to  whether  certain  phrases,  substantially  alike,  used  in 
the  statutes  of  several  states,  do  or  do  not  confer  this  right. 
There  is  a  divergence  between  the  decisions  of  courts  of  differ- 
ent states  on  the  construction  to  be  given  to  statutes  very 
similar  in  language  and  giving  the  right  to  search  the  public 
records  "to  any  person  for  any  lawful  purpose."  Some  courts 
hold  that  such  statutes  give  to  the  public  generally,  including 
any  persons,  firm  or  corporation  who  may  be  engaged  in  the 
enterprise  of  compiling  a  complete  set  of  tract  indices  to  all 
the  records  of  the  county,  the  continuous  right  at  all  reasonable 
hours,  by  themselves  or  their  agents,  to  inspect  and  take  ex- 
tracts and  memoranda  from  the  records  under  reasonable  rules 
and  regulations.  Other  courts  hold  that  such  statutes  do  not 
give  to  an  abstracter  of  titles  a  clear  legal  right  to  make  a  set 
of  tract  indices  to  all  the  records  of  the  county. 

§  101.  Statute  giving  right  to  "any  person"  construed  in  lim- 
ited way.  A  firm  of  abstract  makers  filed  a  petition  for  a 
writ  of  mandamus  to  compel  the  register  of  deeds  to  permit  it 
to  make  a  set  of  tract  indices  to  the  records  of  the  county. 
The  statute  then  in  force  provided:  "The  registers  of  deeds 
in  this  state  shall  furnish  proper  and  reasonable  facilities  for 
inspection  and  examinations  of  the  records  and  files  in  their 
respective  offices,  and  for  making  memoranda  or  transcripts 
therefrom,  during  the  usual  business  hours,  to  all  persons  having 
occasion  to  make  examination  for  any  lawful  purpose."  In 
interpreting  this  clause  the  court  said:  "The  object  sought 
7  97 


98  PUBLIC  llECOEDS. 

by  the  relators  may  be  considered  as  of  such  modern  origin 
as  not  to  have  been  contemplated  or  covered  by  the  common 
law  authorities  relating  to  the  inspection  of  public  records, 
and  the  reason  upon  which  those  authorities  rest  would  exclude 
relators  from  the  right  claimed.  "What  is  the  right  which  re- 
lators seek,  and  the  result  thereof?  But  first  let  us  see  what 
it  is  not.  It  is  not  for  a  public  purpose.  They  do  not  seek 
these  abstracts  for  purposes  of  publication  for  the  use,  benefit 
or  information  of  the  public,  even  if  such  an  unlimited  publica- 
tion could  be  justified.  Relators  do  not  ask  for  an  inspection 
of  a  record  and  abstract  thereof  relating  to  lands  in  which  they 
claim  to  have  any  title  or  interest,  or  concerning  which  they 
desire  information  in  contemplation  of  acquiring  some  right 
or  interest,  either  by  purchase  or  otherwise.  It  is  not  as  the 
agents  or  attorneys  of  parties  seeking  information  because  in- 
terested or  likely  to  become  so.  On  the  contrary,  the  right 
is  based  upon  neither  a  present  nor  prospective  interest  in 
the  lands,  either  personally  or  as  a  representative  of  others 
who  have,  but  is  for  the  future  private  gain  and  emolument 
of  relators  in  furnishing  information  therefrom  to  third  parties 
for  a  compensation  then  to  be  paid.  It  is  a  request  for  the 
law  to  grant  them  the  right  to  inspect  the  record  of  the  title 
to  every  person's  land  in  the  county,  and  obtain  copies  or  ab- 
stracts thereof,  to  enable  them  hereafter,  for  a  fee  or  reward, 
to  furnish  copies  to  such  as  may  desire  the  same,' whether  in- 
terested or  not,  and  irrespective  of  the  object  or  motive  such 
persons  may  have  in  view  in  seeking  such  information.  In 
other  words,  relators  ask  the  right  of  copying  or  abstracting 
the  entire  records  of  the  county  for  private  and  speculative 
purposes,  they  having  no  other  interest  whatever  therein.  Con- 
ceding to  them  this  right  under  such  circumstances,  and  the 
same  must  be  accorded  to  all  others  asking  it.  Every  resident 
of  Jackson  county  may  of  right  claim  a  similar  privilege. 
Indeed,  the  right  for  such  purpose,  if  it  exists  at  all,  cannot 
foe  restricted  by  the  residence  of  the  party,  so  that  the  result 
may  be  more  applicants  than  the  register's  office  could  afford 
room  to.  Farther  than  this,  to  make  such  abstracts  being  thus 
open  to  all,  and  being  a  matter  of  right,  must  be  granted  in 
such  a  manner,  and  such  reasonable  facilities  must  be  afforded, 
th9.i  the  right  claimed  and  exercised  will  not  be  barren  but 


LIMITED  CONSTRUCTION.  99 

profitable.  If  none  but  the  applicants  are  permitted  to  work, 
the  time  consumed  in  making  the  abstract  will,  in  many  counties, 
be  so  long  that  the  full  fruits  thereof  cannot  be  reaped  during 
the  lifetime  of  the  parties.  An  opportunity,  therefore,  should 
be  afforded  to  all  to  have  the  work  done  within  a  reasonable 
time.  If,  therefore,  each  applicant,  with  a  corps  of  assistants 
and  clerks,  makes  demand  upon  the  register  for  facilities  to 
prepare  abstracts,  may  not  that  officer  find  his  position  a  some- 
what embarrassing  one,  and  his  office  uncomfortably  crowded, 
to  his  inconvenience  and  that  of  the  public?  If,  however,  this 
is  a  matter  of  right,  open  and  common  to  all,  and  which  may 
be  enforced  by  mandamus,  must  not  the  proper  authorities  in 
such  county  furnish  suitable  room  and  facilities  to  accommodate 
all  who  may  desire  to  exercise  this  right?  If  not,  and  there  is 
to  be  any  discrimination,  who  shall  be  favored — who  shall  bo 
admitted  and  who  excluded?  How  many  clerks  or  assistants 
shall  each  applicant  have  the  right  to  employ?  Who  shall 
determine  what  shall  be  considered  a  reasonable  time  within 
which  each  may  complete  his  abstract?  And,  as  the  use  of  the 
public  records  cannot  thus  be  handed  over  to  the  indiscriminate 
use  of  those  not  interested  in  their  future  preservation,  how 
shall  the  register  protect  them  from  mutilation?  This  he  can- 
not do  personally  without  neglecting  his  official  duties,  and 
if  he  must  employ  clerks  or  appoint  deputies  for  such  purposes, 
at  whose  expense  shall  it  be,  the  law  having  made  no  provision 
for  such  emergencies?  These  and  many  other  embarrassing 
questions  must  arise  if  this  right  is  found  to  exist.  It  would 
not,  however,  end  here.  This  being  a  right  which  we  might  term 
one  not  coupled  with  an  interest,  must  apply  equally  to  the 
records  in  each  and  every  public  office.  True  the  copies  or 
abstracts  from  each  of  the  several  public  offices  might  not  be 
so  profitable  to  the  parties  making  the  same  as  would  those 
from  the  register's  office,  but  this  would  not  go  to  the  right  to 
make  the  abstract.  May  then  parties  in  no  way  interested, 
other  than  are  these  relators,  insist  upon  the  right  to  inspect 
and  copy  or  abstract  the  records  of  our  courts, — of  the  treas- 
urers of  our  counties,  of  the  several  county  offices;  and  indeed 
why  with  equal  propriety  may  it  not  be  extended  to  a  like  right 
in  each  of  the  several  state  offices?  The  right  once  conceded, 
there  is  no  limit  to  it  until  every  public  office  is  exhausted. 


100  PUBLIC  RECORDS. 

The  inconveniences  which  such  a  system  would  engraft  upon 
public  officers;  the  dangers,  both  of  a  public  and  private 
nature,  from  abuses  which  would  inevitably  follow  in  the  carry- 
ing out  of  such  a  right,  are  conclusive  against  the  existence 
thereof.  It  may  be  said  that,  even  admitting  the  right  to 
exist,  there  would  be  no  such  number  of  persons  desirous  of 
making  abstracts,  and  that  the  dangers  pointed  out  would  not 
therefore  arise,  and  in  corroboration  thereof  the  past  may  be 
referred  to.  How  far  the  uncertainty  of  the  existence  of  such 
an  unlimited  right  in  the  past  may  have  kept  the  number  of 
applicants  within  proper  bounds,  may  have  some  bearing  upon 
the  question,  and  it  may  be  true  that  the  demand  for  abstracts 
of  title  would  have  some  effect  upon  the  supply  offered  for  sale. 
"We  must  bear  in  mind,  however,  that  the  larger  and  more 
populous  the  county,  the  greater  would  be  the  demand,  and 
because  of  the  larger  number  of  volumes  of  records  in  such  a 
county,  a  correspondingly  increased  time  and  force  would  be 
required  for  each  person  to  perfect  his  abstract,'  and  the  greater 
danger  from  abuses  exist.  Besides  in  ascertaining  whether  the 
right  exists,  we  have  a  right  to  inquire  into  the  evils  which  it 
would  be  likely  to  lead  to,  and  may  for  this  purpose  follow 
lip  the  natural  and  probable  consequences  likely  to  result  there- 
from, and  thereby  determine  whether  justified  by  the  principles 
of  the  common-law  decisions.  From  what  has  been  said,  a  very 
brief  reference  to  the  statute  will  be  sufficient.  The  language 
of  the  act  referred  to  does  not  in  clear  and  unmistakable  terms 
include  a  case  like  the  present,  and  such  an  one  should  not  be 
conferred  by  construction.  The  object  of  the  act  was  to  enable 
persons  having  occasion  to  make  examination  of  the  records  for 
any  lawful  purpose, — and  what  would  be  we  have  already 
indicated, — to  have  suitable  facilities  therefor,  to  point  out 
their  rights  and  limitations  therein,  and  the  right  and  duty  of 
the  official  custodian  of  the  records  in  connection  therewith. 
This  was  right  and  proper,  in  order  to  define  the  respective 
rights  and  prevent  conflict  or  confusion,  but  clearly  this  act 
(loL'S  not  extend  to  a  case  like  the  present."^ 

1  Webber    v.    Townley.    43    Mich.  Mich.    3G3;    44    N.    \V.    Rep.    282; 

.'534;    .-5    N.    W.    Rep.    971;    38    Am.  7  L.  R.  A.  73    (1880).     See  Day  v. 

Rep.   213    (1S80).      This   case   was  Rntton,    90    Mich    600;    56    N.    W. 

overruled    in    Burton    v.    Tuite,    78  Hep.  3    (1893). 


LIMITED  CONSTRUCTION.  101 

§  102.  Limited  construction,  continued.  A  statute  provided 
that  "the  records  of  the  judge  of  probate's  otBce  must  be  free 
for  the  examination  of  all  persons,  when  not  in  use  by  him." 
This  was  construed  to  mean  that  any  person  who  had  an  interest, 
his  agent  or  attorney,  had  the  right  of  free  examination  of 
the  records,  together  with  the  right  to  take  memoranda  and 
copies  of  them,  but  it  was  held  that  it  did  not  extend  to  an 
abstracter  of  titles  who  desired  to  make  tract  indices  of  all  tlie 
records  for  future  use  when  required  in  his  business.  It  was 
said:  "It  is  not  the  unqualified  right  of  every  citizen  to  de- 
mand access  to  and  inspection  of  the  books  and  documents 
of  a  public  office,  though  they  are  the  property  of  the  public 
and  preserved  for  public  uses  and  purposes.  The  qualification 
of  the  rule  is  that  no  person  can  demand  that  right  save 
those  who  have  an  interest  in  the  record,  their  lawful  agents  or 
attorneys.  We  must  not,  however,  be  understood  as  intending 
to  abridge  the  right,  conferred  by  statute,  of  '  free  examination, ' 
by  all  persons  having  an  interest,  of  the  records  of  the  probate 
judge's  office.  Nor  will  we  confine  this  right  to  a  mere  right 
to  inspect.  He  may  make  memoranda  or  copies,  if  he  will,  and, 
to  this  end,  may  employ  an  agent  or  attorney.  The  limitation 
is  that  he  must  not  obstruct  the  officers  in  charge  in  the  per- 
formance of  their  official  duties  by  withholding  records  from 
them  when  needed  for  the  performance  of  an  official  function. 
Nor  is  this  right  of  examination  confined  to  persons  claiming 
title,  or  having  a  present  pecuniary  interest  in  the  subject- 
matter.  It  will  embrace  all  persons  interested,  presently  or 
prospectively,  in  the  chain  of  title,  or  nature  of  incumbrance, 
proposed  to  be  investigated.  The  right  of  free  examination  is 
the  rule,  and  the  inhibition  of  such  privilege,  wiien  the  purpose 
is  speculation,  or  from  idle  curiosity,  is  the  exception.  "- 

§  103.  Limited  construction,  mandamus.  A  recorder  may  not 
be  compelled  by  mandamus  to  permit  an  abstract  maker  to  use 
his  office  and  the  county  records  for  the  purpose  of  abstracting 

2  Randolph  v.  State,  82  Ala.  527;  Alabama,   Acts   1889,   provides   that 

2   So.   Rep.   714;    60   Am.   Rep.   761  the    records    must    be    free    for    the 

(1886).       See    Brewer    v.    Watson,  examination  of  all  persons,  whether 

71    Ala.    299;     46    Am.    Rep.     318  such  persons  are  interested  in  such 

(1882).     Phelan   v.    State,    76   Ala.  records  or  not. 
49     (1884).       §    3367,    Statutes    of 


102  PUBLIC  RECORDS. 

the  entire  records  of  the  laud  titles  of  the  county,  even  though 
the  statutes  provide  that  "all  books  and  papers  required  to  be 
kept  in  his  office  shall  be  open  for  the  examination  of  any 
person."  In  so  deciding  it  was  said:  "We  are  of  opinion 
that  the  statute  in  question  was  not  designed  to  allow  individ- 
uals who  wish  to  abstract  the  entire  records  for  future  protit 
in  their  private  business,  the  privilege  of  using  continuously 
the  public  property,  and  of  monopolizing  from  day  to  day, 
for  months  and  years,  a  portion  of  the  time  and  attention  of  a 
public  officer  against  his  will  and  without  recompense."^  The 
same  construction  was  given  in  another  case  *  to  a  statute 
providing  that  records  "shall  be  open  for  the  examination  of 
any  person."  The  opinion  follows  the  same  line  of  argument 
set  forth  in  Bean  v.  People,  supra,  and,  among  other  things, 
says:  "This  right  of  inspection  should  be  exercised  only  by 
X^ersons  who  have  an  interest  in  the  record,  or  by  some  one 
for  them,  for  the  purpose  of  information,  and  was  not  in- 
tended to  give  a  right  to  parties  to  engage  in  private  speculation 
in  connection  with  the  information  there  received."^ 

§  104.  Limited  construction,  index  misunderstood.  The  case 
of  Buck  V.  Collins,"  decided  in  1874,  has  been  frequently  cited 
and  quoted  from  as  sustaining  the  doctrine  that,  under  a  statute 
giving  the  right  of  inspection  to  all  citizens  and  providing  for 
a  fee  to  the  clerk  when  his  aid  is  required,  an  abstracter  of 

3  Bean  v.  People,  7  Colo.  200;   2  this  section  shall  not  interfere  with 

Pac.  I'op.  909   (1883).    In  1885  the  or  take   away  any   right  of  action 

legislature  passed  an  act  in  part  as  for  damages  by  any  person  injured 

follows:      "Any   person  or  corpora-  by   such    refusal   or   neglect."      See 

lion    engaged    in    making    abstracts  Stocknan  v.   Brooks,    17   Colo.   248; 

or    abstract    books,    and    their    em-  29  Pac.  Rep.  146    (1802). 

ployees,  shall   have  the  right  to  in-  *  Cormack    v.    Wolcott,    37    Kan. 

spect,    make    memoranda    or    copies  391;   15  Pac.  Rep.  255   (1887).     At 

of    the    contents   of    all    books    and  the   next  session  of  the  legislature 

papers    for    the    purposes    of    their  an   act    was   passed   giving  to   any 

business  under  reasonable  and  gen-  person  the   right  to  make  a  tract 

eral  regulations,  and,  if  any  oITicer  index   to  the  records, 

shall    refuse   or    neglect    to    comply  o  See  §§  60,  76. 

with    the    provisions    of    this    sec-  « Buck  v.  Collins,  51  Ga.  391;  21 

lion,  he  shall    forfeit  for  each   day  Am.    Rep.   236    (1874);   affirmed  as 

the  sum  of  $5.00,  to  be  collected  in  to   reasoning  and   decision   in   Land 

the   name   of   the    people    arid    paid  Title    Co.    v.    Tanner,    95)    Ga.   470; 

into  the  school  fund;   provided  that  27  S.  E.  Rep.  727    (1896). 


LIMITED  CONSTRUCTION".  103 

titles  has  no  right  to  make  tract  indices  from  the  public  records, 
and  that  the  clerk  is  entitled  from  an  abstracter  doing  a  general 
business  in  the  office  to  fees  for  each  inspection  and  each  ab- 
stract, whether  the  aid  of  the  clerk  is  required  or  not.  It  is 
evident  from  a  close  reading  of  this  opinion  that  the  judge 
who  wrote  it  thought  that  the  abstracter  was  seeking  to  prepare 
for  publication  a  book  which  should  set  forth  the  condition 
of  the  titles  to  lands  in  the  county,  including  mortgages,  judg- 
ments, etc.,  for  sale  upon  the  public  market.  He  said:  "Under 
these  laws,  the  complainant  insists  that  he  has  a  right  to  go 
into  the  clerk's  office,  during  office  hours,  from  day  to  day 
and  from  month  to  month,  at  his  pleasure,  copy  from  the 
books,  when  they  are  not  in  use,  at  his  option,  and  thus  collect 
material  for  a  book  which  he  proposes  to  publish  for  sale. 
*  *  *  In  the  first  place,  we  doubt  if  the  avowed  object 
of  the  complainant  is  not  a  perversion  of  the  purpose  for  which 
the  books  are  kept.  The  necessities  of  society  and  the  protec- 
tion of  those  dealing  with  property,  require  that  these  records 
shall  exist.  That  the  title  to  land,  the  fact  that  mortgages  or 
judgments  exist,  shall  be  capable  of  being  inquired  into  by 
those  interested.  This  is,  as  we  have  said,  a  necessity  of  society, 
and  this  necessity  begets  the  necessity  for  books  and  records. 
The  character  of  one's  title,  and  whether  one  has  mortgages 
or  judgments  against  him,  is  thus  of  necessity  open  to  inquiry, 
and  the  public,  by  providing  books  and  records,  meets  this 
necessity.  Men  are  required,  for  the  protection  of  purchasers 
and  to  secure  fair  dealing,  to  put  their  titles  upon  record,  and 
to  expose,  in  some  respects,  what  they  may  have  strong  induce- 
ments to  keep  secret.  But  while  the  public  interest  thus  pro- 
vides a  mode  by  which  any  one  may  learn  the  truth  upon 
inquiry,  it  is  no  part  of  the  public  scheme  to  make  this  exposure 
universal.  It  provides  that  those  who  seek  the  information  can 
get  it,  but  it  does  not  and  ought  not  to  flaunt  the  information 
its  records  contain  before  the  public  gaze,  and  thus  make  a 
scandal  of  a  public  necessity.  The  object  of  the  record  is  to 
furnish  to  those  needing  it  the  information  the  record  contains. 
That  object  is  attained  when  its  books  are  open  to  inquiries 
as  these  occasions  present  themselves.  The  object  sought  by 
the  complainant,  to-wit :  to  put  the  substance  of  these  records 
into  print,  to  be  sold  and  put  in  the  hands  of  any  one  who 


104  PUBLIC  RECORDS. 

may  eliance  to  buy  or  to  borrow,  is  an  extension  of  this  pub- 
licity beyond  the  necessities  which  make  the  record  justifiable, 
and  is  a  perversion  of  the  object  sought  by  the  requirement  to 
record.  It  is  an  unnecessary  flaunting  of  private  matters  before 
the  public  gaze.  *  #  *  if  the  complainant  has  the  right 
to  do  what  he  claims,  he  has  the  right  to  keep  the  clerk's 
attention  from  minute  to  minute,  and  from  day  to  day,  until 
his  book  is  finished.  *  *  *  The  avowed  object  of  the  com- 
plainant is  to  furnish  to  the  public  the  contents  of  the  books 
and  papers  of  the  clerk's  olifice  for  his  own  profit.  He  pro- 
poses to  say  to  the  public,  *if  you  desire  to  iu(|uire  into  a 
title  or  into  the  incumbrances  upon  an  estate,  or  into  the  judg- 
ments against  a  citizen,  you  need  not  visit  the  clerk's  office, 
you  need  not  pay  him  any  fees.  Here  is  my  book — it  is  all 
there;  you  can  get  what  you  want  without  fees."^ 

§  105.  Statute  is  not  declaratory  of  general  law.  If  a  statute 
which  declares  that  records  shall  be  open  to  the  inspection  cf 
any  person  for  any  lawful  purpose  does  not  give  the  right  of 
search  to  one  who  has  no  interest  in  the  records  to  be  examined, 
it  is  of  no  force  and  efifect  whatever,  and  is  merely  declaratory 
of  what  is  often  called  the  common  law  on  the  subject.*  But 
an  analytical  consideration  of  such  a  statute  and  of  the  general 
law  on  the  right  to  inspect  public  records  will  clearly  show 
that  such  a  statute  can  only  mean  that  any  person  may  make 
a  tract  index  to  the  records.  There  are  only  three  classes  of 
persons  mentioned  in  the  books  as  having  occasion  to  examine 
public  records, — one  whose  motive  is  an  idle  curiosity,  one  who 
is  interested  in  some  special  records  and  one  who  has  a  private 
or  speculative  purpose.  The  person  who  desires  to  spend  his 
time  in  examining  dry  and  uninteresting  records  merely  to 
satisfy  an  idle  curiosity  is,  of  course,  a  myth,  a  creature  of 
the  imagination.  But  he  represents  the  meddler  and  the  person 
who  desires  to  publish  defamatory  and  scandalous  matter  con- 
tained in  the  records.  Such  persons  have  no  standing  in  court 
to  assert  their  rights  under  any  possible  state  of  the  law,  and 
they  are  unworthy  of  any  enabling  legislation.  It  cannot  be 
supposed  that  such  a  statute  has  been  passed  for  their  benefit. 
In  the  absence  of  legislation,  a  person  has  a  right  to  examine 

7  See  §  1.34. 

8  Hanson  v.   Eichstaedt,   69   Wis.   538;  35  N.  W.  Hep.  30    (1887). 


STATUTES  LIBERALLY  CONSTRUED.  1C5 

sncli  records  as  he  is  interested  in  and  to  make  such  searches 
as  may  be  necessary  to  discover  the  existence  or  non-existence 
of  anything  of  record,  which  may  affect  his  interests.  Such  a 
statute  does  not  add  to  his  rights  and  is  not  for  his  benefit. 
The  one  with  a  private  or  speculative  purpose,  having  no  right 
under  the  general  law  to  inspect  public  records,  is  the  one 
whose  rights  are  created  by  such  a  statute.  It  must  be  intended 
for  his  benefit,  for  there  is  no  one  else  to  whom  it  may  apply. 
"Without  enabling  legislation  he  may  carry  on  his  business  as 
the  agent  of  interested  persons,  but  without  it  he  may  not 
search  the  records  in  his  own  right.  The  purpose  of  such  a 
statute  is  to  give  him  this  privilege. 

§  106.  laws  extending  the  right  to  search  should  be  liberally 
construed.  Congress  and  the  legislatures  of  most  states  have 
done  aw^ay  with  the  necessity  for  interest  and  have  passed 
laws  extending  the  right  of  inspection  and  examination.  Some 
of  these  statutes  have  been  construed  so  as  to  limit  the  right 
of  search  under  them,  and  the  legislatures  have  again  passed 
laws  clearly  and  unmistakably  extending  the  right.  For  in- 
stance, in  Colorado  and  Kansas  the  statutes  provided  that  the 
records  should  be  open  for  the  inspection  of  ''any  person." 
The  supreme  courts  of  these  states  held  that  under  such  statu- 
tory provision  an  abstracter  of  titles  was  not  entitled  to  make 
a  set  of  tract  indices  of  the  records.^  Immediately  after  these 
decisions  were  rendered,  the  legislatures  of  these  states  passed 
laws  providing  expressly  that  abstracters  should  have  the  right 
to  inspect  all  records  and  to  make  memoranda  of  their  con- 
tents for  the  purposes  of  their  business.^"  It  is  in  legislative 
enactments,  and  not  in  the  decisions  of  courts,  that  we  find  a 
distinee  departure  from  the  old  English  rule  and  a  disposition 
to  open  up  the  public  records  to  public  inspection,  in  order 
to  meet  the  requirements  of  modern  methods  of  dealing  with 
titles  to  lands.  In  considering  laws  which  have  been  passed 
to  extend  the  right  to  search  and  examine  them,  it  must  be 
remembered  that  public  records  are  public  property,  kept  in  a 
public  place,  at  the   public   expense,   for  the   public   benefit." 

»Bean    v.    People,    7    Colo.    200;  io§  103.     See  §  102  for  provision 

2  Pac.  Rep.   909    (1883).     Cormack       of  Alabama  code. 
V.   Wolcott,   37   Kan.   391;    15   Pac.  hLhiti   v.   McCarty,   39   N.   J.   L. 

Kep.  255   (1887).  287    (1877).      In   re  Chambers,  44 

Fed.  Rep.  78G    (1891). 


106  PUBLIC  RECORDS. 

Many  of  thera  are  constructive  notice  to  all  the  world  of  the  con- 
tents of  them.  They  are  made  by  the  authority  and  direction 
of  the  state  or  general  government  for  public  purposes.  The 
laws  creating  them  are  not  revenue  measures,  and  such  records 
are  not  made  and  kept  as  a  source  of  revenue  to  the  sovereign 
power  creating  them.  It  is  also  important  to  remember  that 
they  are  not  made  and  kept  for  the  private  gain  of  the  officer 
charged  with  the  duty  of  making  and  protecting  them."  From 
this  it  does  not  follow  that  every  person  has  or  should  have  the 
unqualified  right  of  free  inspection  of  the  records  for  any  pur- 
pose, but  it  would  seem  to  follow  as  sound  public  policy  that 
the  greatest  liberty  of  inspection  should  be  accorded  to  every- 
one, consistent  with  the  public  interest  and  the  due  administra- 
tion of  the  office  containing  thera.  Some  courts  have  assumed 
that  at  common  law  no  one  could  examine  public  records  unless 
he  had  an  interest  in  the  matter  to  be  examined,  and  they  have 
treated  statutes  extending  the  right  of  inspection  as  being  in 
derogation  of  the  common  law  and  as  requiring  a  strict  and 
limited  construction.^^  But  as  has  been  said,^*  the  so-called 
common  law  rule  is  not  such  in  any  proper  and  historical  sense. 
The  records  to  be  searched  are  created  by  our  own  laws  for  pur- 
poses unknown  to  the  English  system  of  dealing  with  titles  to 
land,  and  it  certainly  cannot  truly  be  said  that  any  act  extend- 
ing the  right  to  search  such  records  is  in  derogation  of  the  com- 
mon law  of  England.  The  legislature  has  the  undoubted  power 
to  authorize  any  person  it  may  see  proper  to  have  free  access  to 
public  records  for  the  purpose  of  transcribing  or  inspecting 
them  for  such  purposes  as  it  may  deem  the  public  interests  to 
require,  and  to  that  end  it  may  grant  free  access  to  all  offices 
wherein  such  records  are  kept.  The  officer  has  no  exclusive 
vested  right,  beyond  the  reach  of  legislative  enactment,  to  make 
copies  of  the  records,  and  no  mere  official  perquisite  will  stand 
against  its  action."     It  is  competent  for  the  legislature  to  grant 

12  In   re  Chambers,   supra.  Am.    Rep.    701     (1886).       Buck    v. 

13  Webber      v.      Townley,      infra.       Collins,   51    Ga.   391;    21   Am.    Rep. 
Bean  v.  People,  7  Colo.  200;  2  Pac.       230    (1874). 

Rep.     909      (1883).        Cormack     v.  "See  §§   86,  87. 

Wolcott.  37  Kan.  391;  1.5  Pac.  Rep.  "Silver    v.    The    People,    45    111. 

255     (1887).       Randolph    v.    State,  224     (1876).       See    also    Ilawes    V. 

82    Ala.    527;    2    So.    Rep.    714;    CO  White,  CG  Me.  305   (18G7). 


DANGER  AND  INCONVENIENCE.  107 

free  access  to  the  public  records  and  documents,  and  to  sur- 
round the  privilege  of  examination  with  such  limitations  and 
restrictions  as  it  may  deem  necessary  and  proper.^^  It  has  been 
said  that  the  language  of  an  act  giving  the  right  of  free  inspec- 
tion should  be  in  clear  and  unmistakable  terms  and  that  no  such 
right  should  be  given  by  construction  of  a  vague  statute."  But 
in  view  of  the  purposes  and  effects  of  our  recording  acts  which 
were  utterly  unknown  to  the  common  law,  and  in  view  of  the 
authority  and  control  of  the  legislature  over  our  public  records, 
the  better  rule  would  seem  to  be  that  the  language  of  such  an  act 
should  be  construed  liberally  and  literally,  so  as  to  extend  rather 
than  to  restrain  the  right  of  inspection.  In  construing  such 
an  act,  the  principle  should  be  that  the  right  of  examination  of 
public  records  is  to  be  favored,  and  that  the  inhibition  or  re- 
striction of  the  privilege  of  examination  is  to  be  avoided  unless 
it  is  clearly  enjoined  by  the  act.^^ 

§  107.  Danger  and  inconvenience  in  permitting  tract  indices 
to  be  made.  It  has  been  said  that  where  the  statute  gives  the 
right  of  access  to  the  public  records  to  any  person,  the  question 
of  the  right  of  an  abstracter  to  make  a  set  of  tract  indices  from 
such  records  is  embarrassing  and  not  free  from  doubt.^"  Where 
it  has  been  held  that  an  abstracter  has  no  such  right,  the  de- 
cisions have  been  placed,  in  part  at  least,  on  the  ground  that 
danger  and  inconvenience  will  result  from  such  a  use  of  the  pub- 
lic records.  It  has  been  suggested  that  if  one  person,  firm  or 
company  has  the  right  to  use  the  public  ofSce  and  records  for 
that  purpose,  others  have  the  same  right,  and  that  two  or  more 
abstracters  with  their  clerks  and  assistants  might  at  the  same 
time  prepare  such  indices,  fill  up  the  office  and  impede  the  work 
of  the  officer  in  charge.-**  It  has  also  been  suggested  that  the 
business  of  an  abstracter  is  permanent,  and  to  carry  it  on  suc- 
cessfully he  must  not  only  by  himself  and  his  agents  occupy  the 
recorder's  office  for  weeks,  and  perhaps  months,  in  abstracting 

18  State   V.    McCubrey,    84    Minn.  is  But  see  §§  83,  142. 

439;  87  N.  VV.  Rep.  1126   (1901).  lo  Corniack   v.    Wolcott,    37   Kan. 

17  Webber    v.   Townley,   43    Mich.  391;    15  Pac.  Rep.  245    (1887). 

534;    5    NT.    W.    Rep.    971;    38   Am.  20  Cormack     v.     Wolcott,     sxipra. 

Rep.  213    (1880),  overruled  in  Bur-  Bean  v.  People,  7  Colo.  200;  2  Pac, 

ton   V.  Tuite.  78  Mich.   363;    44  N.  Rep.   909    (1883). 
W.  Rep.  282;  7  L.  R.  A.  73  (1889). 


108  PUBLIC  RECORDS. 

the  instruments  already  recorded,  but  he  must  also  be  there 
daily  thereafter  abstraetiuj?  conveyances  iiled  from  day  to  day; 
that  the  interruption  and  annoyance  of  the  officer  in  charge  are 
not  temporary,  but  are  continuous  and  permanent.^^  The  wear 
and  tear  of  the  records  from  frequent  handling,  the  possibility 
of  alteration,  mutilation  or  defacement  of  the  records,  the  re- 
quirement of  large  space  for  the  accommodation  of  the  per- 
sons employed  by  the  abstracter,  and  the  cost  of  the  numerous 
deputies  to  watch  the  records  in  the  hands  of  the  searchers,  have 
all  been  connnented  on  in  such  cases  and  urged  as  reasons  why 
such  a  statute  did  not  extend  to  an  abstracter  of  titles  who  de- 
sired to  make  tract  indices  to  the  records."  On  this  subject  it 
was  said:  "We  have  no  hesitation  in  saying  that  nothing  less 
than  the  plain  and  explicit  terms  of  the  statute  could  justify  a 
construction  so  fraught  with  danger  to  the  highest  public  in- 
terest. "=^ 

§  108.  Danger  and  inconvenience  not  a  convincing  argument. 
But  the  arguments  founded  on  the  dangers  and  inconveniences 
likely  to  arise  from  the  use  of  the  records  by  abstracters  of  titles 
are  not  acquiesced  in  by  all  the  courts.  In  one  case  it  was 
said:-*  **I  cannot  agree  with  the  opinion  of  this  court  or  the 
reasons  given  for  it  in  Webber  v.  Townley,  supra;  nor  do  I  an- 
ticipate that  hardly  any,  if  any,  of  the  results  imagined  by  the 
writer  of  that  opinion  would  ever  occur  if  the  holding  were 
otherwise.  If  any  of  them  should  happen,  the  law  is  powerful 
enough  to  remedy  them  and  'sufficient  unto  the  day  is  the  evil 
thereof.'  *  *  *  I  can  see  no  danger  of  great  abuses  or 
inconveniences  likely  to  arise  from  the  right  to  inspect,  examine 
or  make  note  of  public  records,  even  if  such  right  be  granted 
to  those  who  get  their  living  by  selling  the  information  thus 
gained.  The  inconvenience  to  the  office  is  guarded  against  by 
the  statute  which  authorizes  the  incumbent  to  make  reasonable 
rules  and  regulations  with  reference  to  the  inspection.     And 

21  Bean  v.  People,  supra.  5   N.    W.    Rep.   971;    38   Am.    Rep. 

2->  Cormack     v.     Wolcott,     supra.  21.3    (1880).     See  §  51. 
Belt  V.   Abstraet  Co..   73   Md.   289;  aT  Belt  v.  Abstract  Co.,  supra. 

20  Atl.   Rep.  !)8-2;    10  L.    W.  A.  212  2^  Burton  v.  Tuito.  78  Mich.  303; 

(1890).      Buck    v.    Collins.    .51    Ga.  44    N.    VV.    Hep.    282;    7    L.    R.    A. 

391;     21     Am.     Hep.     2:]C>      (1874).  73    (1889). 
Webber   v.   Townley,  43   INIicli.   534; 


DANGER  AND  INCONVENIENCE.  109 

when  abuses  are  shown  there  will  no  doubt  be  found  by  the  legis- 
lature or  the  courts  a  remedy  for  them."  With  regard  to  the 
suggestion  that  rival  abstracters  may  at  the  same  time  fill  the 
recorder's  office  with  their  assistants  in  the  preparation  of  tract 
indices,  it  has  been  said  that  a  difficulty  merely  anticipated  and 
practically  not  likely  to  occur  is  not  a  sound  argument,  and  that 
there  is  no  serious  difficulty  in  procuring  larger  accommodations 
and  more  clerical  help  if  the  demand  for  inspection  of  the  rec- 
ords requires  it.^^  The  wear  and  tear  of  the  records  incident  to 
the  legitimate  public  use  of  them  is  no  concern  of  the  court,  or 
of  the  custodian  of  the  records.  When  worn  out  in  a  use  to 
which  they  are  dedicated  by  the  legislature,  the  appropriate 
authority  may  be  relied  on  to  make  provision  for  rewriting  or 
renewing  them,  as  has  often  been  done  in  such  cases.^^  It  is 
often  said  that  the  public  use  of  records  may  result  in  the  alter- 
ation or  mutilation  of  them,  but  this  cannot  be  received  as  an 
argument  against  such  use,  because  it  is  a  use  to  which  they  are 
devoted  by  the  act  of  the  legislature  providing  for  them  and 
making  them  constructive  notice  of  their  contents  to  all  the 
world. -^ 

§  109.  In  reference  to  the  cases  which  have  dwelt  on  the 
dangers  and  inconveniences  likely  to  arise  from  permitting  ab- 
stracters to  make  tract  indices  from  the  records,  a  well-known 
writer  has  said:-^  **Not  the  least  among  the  reasons  assigned  in 
the  foregoing  class  of  eases  is  solicitude  for  the  preservation  of 
the  sources  of  information.  The  public  records,  it  is  said,  are 
the  repositories  of  the  rights  of  persons  and  of  property,  and  in 
many  cases  hold  the  only  evidence  of  either,  and  the  law  im- 
poses upon  courts  and  ministerial  officers  the  duty  of  their  se- 
cure and  careful  protection  and  preservation;  a  protection  and 
preservation  which  might  be  greatly  jeopardized  if  every  citizen 
at  his  will  and  pleasure  should  be  permitted  to  inspect,  ex- 
amine and  copy  them  in  his  own  way.  It  must  be  admitted  that 
the  argument  is  weak  when  applied  to  any  particular  class  as 
contra-distinguished  from  the  general  public,  and  fanciful  when 
applied  to  actual  facts  as  they  are  presented  in  every  county  in 

25  People  V.  Cornell,  47  Barb.  329  26  in  re  Chambers,  44  Fed.  Rep. 

(1866).     See  also  Bell  V.  Title  Co.,  786    (1891). 

189   U.    S.    131;    23   Sup.    Ct.    Rep.  27  Jn  re  Chambers,  supra. 

569    (1903).  28Warvelle  on  Abstracts,  page  65. 


110  PUBLIC  PxECORDS. 

the  country.  ^Mutilations  of  records  are  rare,  and  when  in- 
stances of  this  kind  do  occur,  it  will  usually  be  found  that  the 
mutilation  has  been  accomplished  by  some  person  having  a 
special  interest  therein — in  other  words,  by  one  whom  the  law 
says  may  inspect  them.  It  is  a  significant  fact  that  the  case  in 
which  this  theory  was  first  advanced,  and  which  has  served  as 
the  keynote  for  every  subsequent  decision  of  similar  import,  has 
since  been  overruled  in  the  court  where  it  was  pronounced.-^ 
As  a  matter  of  fact,  no  class  of  the  community  are  more  directly 
interested  in  the  preservation  and  integrity  of  the  records  than 
the  compilers  of  abstracts,  and  on  more  than  one  occasion  their 
indices  and  references  have  been  brought  into  requisition  to  pro- 
tect public  interests  and  prevent  confusion  of  titles." 

There  is  no  propriety  in  clinging  to  old  ideas  simply  because 
they  are  familiar,  in  arguing  in  favor  of  a  system  of  official 
searches  because  the  officer  has  custody  of  the  records,  in  re- 
fusing to  recognize  the  value  of  recent  and  modern  methods  of 
indexing  and  examining  records,  or  in  holding  tenaciously  to  an 
old  method  of  making  abstracts  which  is  slow,  expensive  and  in- 
secure. It  is  profitless  to  set  forth  in  high  sounding  phrases 
unnecessary  fears  for  the  safety  and  integrity  of  the  public 
records  or  for  the  privacy  of  the  transfer  or  mortgaging  of  real 
estate.  It  is  ignoring  the  nature  of  public  records  as  construc- 
tive notice  and  the  necessity  of  scientific  methods  of  examination 
to  complain  that  the  time  and  attention  of  the  custodians  of 
records  may  be  monopolized  by  persons  engaged  in  the  work  of 
preparing  indices  for  the  conduct  of  their  business  and  for  the 
ultimate  public  convenience  and  security. ^° 

§  110.  Danger  and  inconvenience,  legislation.  The  argu- 
ments founded  on  the  dangers  and  inconveniences  which  might 
arise  by  opening  the  records  to  the  inspection  of  abstracters  for 
the  purposes  of  their  business  have  not  appealed  to  the  legisla- 

29  This  statement  is  slightly  in-  727  (189G).  The  second  case,  Web- 
accurate.  The  first  case  in  which  ber  v.  Townley,  43  Mich.  534;  5 
such  arguments  were  set  forth  was  N.  W.  Rep.  971;  38  Am.  Rep.  213, 
Buck  V.  Collins,  51  Ga.  391;  21  was  decided  in  1880  and  was  sub- 
Am.  Rep.  23G,  decided  in  1874;  scquenlly  overruled  in  Burton  v. 
affirmed  as  to  reasoning  and  de-  Tuite,  78  Mich.  363;  44  N.  W.  Rep. 
cision  in  Land  Title  Co.  v.  Tan-  282;  7  L.  R.  A.  73  (1889). 
ner,    99    Ga.    470;    27    S.    E.    Rep.  so  See  §  99. 


BAD  FEELING.  Ill 

tures  of  the  many  states  which  have  provided  for  free  access 
to  the  records.  Before  abstract  companies  were  so  general  and 
so  well  understood,  and  while  the  necessity  for  them  was  not  so 
apparent,  there  was  a  tendency  on  the  part  of  the  courts  to  look 
with  disfavor  on  the  granting  to  them  of  the  privileges  of  in- 
spection of  the  county  records  for  the  purpose  of  making  tract 
indices.  But  of  late  years,  since  the  necessity  for  tract  indices 
has  been  fully  recognized,  legislation  has  been  strongly  in  favor 
of  professional  abstracters,  and  the  courts  have  put  aside  their 
fear  that  the  integrity  of  the  records  may  be  violated  by  the 
comparatively  small  search  which  is  necessary  in  preparing  a 
tract  index.  In  making  an  index  an  abstracter  takes  mem- 
oranda from  a  recorded  instrument  but  once.  The  index  is  a 
source  of  expense,  not  of  profit,  and  it  is  prepared  as  a  guide 
and  aid  in  the  conduct  of  a  business.  This  business  consists  in 
making  abstracts  of  title  for  interested  persons,  and  in  conduct- 
ing it  as  a  means  of  livelihood  almost  all  the  examining  is  done. 
The  dangers  and  inconveniences  in  examinations  by  abstracters 
are  certainly  no  greater  when  they  are  engaged  in  making  tract 
indices  than  when  they  are  engaged  in  the  far  greater  work  of 
making  abstracts  of  title  for  those  who  need  them  in  pending 
transactions  in  real  estate ;  and  yet  it  must  be  admitted  that,  in 
the  absence  of  prohibitive  legislation  and  subject  to  reasonable 
rules  and  regulations,  they  are  entitled  to  make  abstracts  fully 
and  freely  as  the  agents  of  interested  persons, 

§  111.  Bad  feeling  between  officers  and  abstract  men.  The 
dangers  and  inconveniences  of  permitting  abstracters  to  make 
a  set  of  tract  indices  from  the  records  have  been  urged  upon  the 
courts  by  the  officers  in  charge  of  the  records,  between  whom 
and  the  abstracters  bad  feeling  had  been  aroused.  Where  the 
officer  feels  that  he  has  the  power  to  permit  the  abstracter  to 
make  an  index  or  to  prevent  him  from  making  it,  just  as  he  may 
choose,  and  the  abstracter  thinks  that  he  has  a  right  under  the 
statute  to  make  an  index,  feelings  of  hostility  are  easily  en- 
gendered. It  is  to  be  noted  that  the  case  of  Brewer  v.  Watson, 
involving  the  right  to  inspect  public  records,  went  to  the  su- 
preme court  three  times.^^  After  the  decision  in  Burton  v. 
Tuitc,^^  the  record  of  which  shows  a  very  bitter  controversy, 

3161    Ala.   310;    65   Ala.   88  j    71  2273  Mich.  363. 

Ala.  299. 


112  PUBLIC  RECORDS. 

the  officer  refused  to  permit  the  relator  to  inspect  certain  rec- 
ords in  accordance  with  the  writ  of  mandamus,  and  in  a  subse- 
quent proceeding  he  was  adjudged  guilty  of  contempt  and  dis- 
obedience of  the  writ,  and  fined  by  the  supreme  court.-''^  There 
is  a  suggestion  in  the  record  in  a  few  cases  that  the  reason  why 
the  officer  objects  to  the  enterprise  of  the  abstracter  is  because 
the  officer  is  preparing  a  set  of  tract  indices  to  be  used  by  him 
in  the  business  of  maliing  abstracts  as  soon  as  his  term  of  office 
shall  expire.  But  when  the  whole  field  of  operations  is  viewed, 
when  the  great  number  of  counties  is  considered,  in  which  one 
or  more  tract  indices  to  the  records  have  been  made,  it  is  only 
surprising  that  more  appeals  to  the  court  have  not  been  made. 
In  one  case  it  was  said:  "The  ¥ight  to  do  this  (make  a  tract 
index)  had  been  usually  exercised  and  conceded  without  ques- 
tion. But  in  some  instances  the  right  had  been  denied,  and  dis- 
putes and  even  litigation  over  the  matter  had  arisen  between 
registers  and  the  abstract  men."^*  All  over  this  country  this 
right  has  been  exercised  and  conceded  without  question.  The 
officers  in  charge  of  the  records  have  clearly  seen  that  it  was 
impossible  to  make  abstracts  of  title  with  rapidity  and  ac- 
curacy without  the  aid  of  an  index,  and  that  the  public  con- 
venience and  necessity  required  that  an  index  be  made.  They 
have  found  that  in  offices  where  an  index  had  been  prepared, 
the  general  public,  working  slowly  along  the  old  lines  and  in  tho 
old  methods,  gradually  ceased  to  frequent  the  offices,  and  they 
have  recognized  that  this  was  a  good  thing  for  the  preservation 
of  the  records  and  for  the  administrative  work  of  the  office.  Men 
who  have  been  elected  to  office  are  not  usually  lacking  in  the  po- 
litical sagacity  which  suggests  that  they  make  friends  of  the 
voters  of  the  community,  and  when  one  of  the  public  visits  the 
office  to  get  information  contained  in  records  with  which  he  is 
wholly  unfamiliar,  it  usually  means,  except  in  the  larger  cities, 
that  the  officer  or  one  of  his  deputies  must  cease  his  work  and 
hunt  for  the  desired  information.  In  such  instances,  and  in 
many  others,  the  abstracter  with  an  index  assists  the  officer,  and 
in  assisting  each  other,  they  work  in  parallel  lines  without  fric- 
tion or  hostility.  Generally  speaking,  the  recorder  or  register 
of  deeds  is  not  a  lawj'^er  or  a  man  who  has  had  any  experience  in 

33  Burton  v.  Tuite,  80  Mich.  218;  s*  State  v.  Rachac,  .37  Minn.  372; 

45  N.  W.  Kep.  88.  35  N.  \V.  Rep.  7   (1887). 


SALE  OF  ABSTRACTS.  113 

conveyancing  or  in  the  technicalities  of  the  laws  of  real  estate, 
and  the  professional  abstract  maker  doing  business  in  his  office 
becomes  his  adviser  and  assists  him  in  various  ways.  It  is 
greatly  to  the  credit  of  the  officers  and  their  deputies  and  the 
abstracters  and  their  assistants,  in  the  many  offices  through- 
out the  country,  that  they  so  conduct  themselves  as  to  live  in 
harmony,  all  respecting  the  rights  of  each.  County  officers,  ad- 
vised as  to  their  own  rights  and  as  to  the  rights  of  abstracters, 
know  that  an  abstracter  is  entitled  to  examine  the  records  as 
the  agent  of  one  interested  in  them,  and  they  also  know  that  he 
can  make  an  examination  much  more  rapidly  and  with  less  in- 
convenience to  all  persons  concerned  with  the  aid  of  an  index. 
Unless  some  antagonism  has  been  aroused,  there  is  seldom  any 
objection  to  the  making  of  a  tract  index  by  the  abstracter. 

§  112.  Right  to  search  records  for  the  purpose  of  selling  in- 
formation to  others.  In  one  case  it  was  said  that  the  right  to 
search  public  records  is  controlled  to  some  extent  by  the  objects 
for  which  the  examination  is  made  or  the  use  to  be  made  of  such 
information ;  that  where  the  information  is  to  be  used  in  the 
making  of  a  tract  index  for  the  purpose  of  private  gain  in  the 
sale  of  abstracts,  solely  for  the  benefit  of  the  maker  of  the  tract 
indices,  for  no  public  use  or  purpose,  and  not  for  the  purpose  of 
examination  of  any  particular  title  in  which  he  has  an  interest 
as  principal  or  agent,  but  solely  for  the  purpose  of  selling  ab- 
stracts, the  privilege  will  not  be  granted.^^  The  first  clause  cor- 
rectly states  a  general  principle  of  the  law,  but  the  second  clause 
is  confused  and  misleading.  In  the  absence  of  a  statute  removing 
the  necessity  for  an  interest  in  the  matter  to  be  inspected,  an 
abstracter  may  not  examine  the  records  for  the  purpose  of 
making  a  tract  index,  for  the  good  and  sufficient  legal  reason 
that  he  has  no  interest  in  the  matters  to  be  inspected.  The  fact 
that  he  intends  to  prepare  abstracts  after  he  perfects  his  in- 
dex does  not  bear  on  the  question  of  his  right  to  make  the 
searches.  His  purpose  to  prepare  abstracts  is  not  illegal,  but 
as  a  stranger  he  has  no  right  to  make  the  search  in  order  to 
make  an  index.  Other  opinions  contain  obscure  references  to 
the  fact  that  the  abstracter  desires  to  equip  himself  with  ma- 
terial for  the  sale  of  abstracts.^*^     But  in  one  case  it  was  said 

35Cormack    v.    Wolcott,    37   Kan.  3g  Buck   v.    Collins,    51    Ga.    391; 

391;    15   Pac.   Rep.   245    (1S87).  21  Am.  Rep.  236    (1S7-4).     Beau  v, 

8 


114  PUBLIC  RECORDS. 

that,  under  a  statute  giving  access  to  the  records  to  all  persons 
for  any  lawful  purpose,  an  abstracter  may  not  be  deprived  of 
the  right  to  examine  them  and  make  a  tract  index,  merely  be- 
cause he  proposes  to  use  the  records  to  prepare  abstracts  of  title 
for  other  persons  for  a  compensation.-'^ 

The  suggestion  that  an  abstracter  in  the  conduct  of  his  busi- 
ness sells  information  or  sells  abstracts  of  title  is  inaccurate 
and  confusing.  He  does  not  collect  information  and  prepare  ab- 
stracts and  keep  them  on  hand  for  sale.  He  is  not  in  a  com- 
mercial business.  He  does  not  deal  in  commodities  or  articles 
of  commerce  which  sell  at  so  much  a  sheet  or  so  much  a  roll. 
He  is  in  the  agency  business,  and  he  undertakes  for  hire  to  ex- 
amine the  mass  of  records  containing  hidden  information  on 
titles  to  real  estate,  and  to  make  a  written  report  of  the  search 
as  to  certain  specific  property.  This  written  report  is  the  evi- 
dence of  the  way  in  which  he  has  done  his  work  and  is  com- 
monly called  an  abstract  of  title.  No  such  report  is  made  by 
him  unless  he  has  been  employed  to  make  it.  Pie  does  not  sell 
his  report,  but  charges  his  employer  for  his  services  in  making 
it.  An  abstracter  acts  as  an  agent  in  making  the  search,  even 
though  he  proposes,  on  the  strength  of  the  examination  and  for 
a  compensation,  to  certify  as  to  the  condition  of  the  records,  or 
is  to  issue  a  policy  of  insurance  on  the  title.^* 

§  113.  Generally  of  the  cases  just  considered.  The  five  cases, 
in  which  statutes  giving  the  right  of  inspection  to  "any  person" 
have  been  construed  in  a  limited  way,  have  been  quoted  from  and 
reviewed  at  length.  One  of  them  has  been  overruled,  three  of 
them  have  been  nullified  by  the  legislatures  of  the  states  in 
which  they  were  rendered,  and  in  one  of  them  the  nature  of  a 
tract  index  was  entirely  misapprehended.^^  The  statements, 
suggestions  and  arguments  contained  in  these  opinions  have  been 
discussed  fully,  and  the  conclusion  is  irresistible  that  the  judges 
who  wrote  them  did  not  have  in  mind  the  fact  that  abstracters, 
as  the  agents  of  interested  persons,  have  the  right  to  occupy 
space  in  the  county  offices  and  to  make  searches  of  the  public 
records. 

People,   7    Colo.   200;    2   Pac.    Rep.  88  See  §§   1,  35,  3C, 

909    (1883).  80  Webber   v.  Townley,   ovornilofl. 

37  T?urton  v.  Tuite,  78  Mich.  363;  Statutes  permitting  penoral   iiispcc- 

44    ^^.    W.    Rep.    282;    7    L.    R.    A.  tion  were  passed  in  Colorado,  Kan- 

73   (1889).  sas  and  Alabama. 


CHAPTER  XL 

RIGHT   TO  MAKE  INDICES   AND   INSPECT   RECORDS   UNDER   STATUTORY 
PROVISIONS;    LITERAL   CONSTRUCTION. 

§  114.  Statute  giving  right  to  "any  person"  construed  literally. 
After  the  decision  in  Webber  v.  Townley/  the  legislature  of 
Michigan  passed  an  act  -  substantially  the  same  as  the  one  con- 
strued in  the  Webber  case,  providing  that  the  custodian  of  pub- 
lic records  should  furnish  proper  and  reasonable  facilities  for 
the  inspection  and  examination  of  such  records,  and  for  making 
memoranda  and  transcripts  therefrom,  "to  all  persons  having 
occasion  to  make  examination  of  them  for  any  lawful  purpose." 
An  abstract  maker  asked  for  a  writ  of  mandamus  to  compel  an 
officer  to  furnish  him  proper  and  reasonable  facilities  for  making 
examinations,  memoranda  and  transcripts  of  tax  sales  in  com- 
pliance with  the  act.  In  passing  on  this  petition  the  court  over- 
ruled the  case  of  Webber  v.  Townley,^  and  said:  "I  cannot 
agree  with  the  opinion  of  this  court,  or  the  reasons  given  for  it, 
in  Webber  v.  Townley,  supra;  nor  do  I  anticipate  that  hardly 
any,  if  any,  of  the  results  imagined  by  the  writer  of  that  opin- 
ion would  ever  occur,  if  the  holding  were  otherwise.  If  any  of 
them  should  happen,  the  law  is  powerful  enough  to  remedy 
them,  and  'sufficient  unto  the  day  is  the  evil  thereof.'  I  do  not 
think  that  any  common  law  ever  obtained  in  this  free  govern- 
ment that  would  deny  to  the  people  thereof  the  right  of  free 
access  to,  and  public  inspection  of,  public  records.  They  have 
an  interest  always  in  such  records,  and  I  know  of  no  law,  writ- 
ten or  unwritten,  that  provides  that,  before  an  inspection  or  ex- 
amination of  a  public  record  is  made,  the  citizen  who  wishes  to 
make  it  must  show  some  special  interest  in  such  record.  I  have 
a  right,  if  I  see  fit,  to  examine  the  title  of  my  neighbor's  prop- 
erty, whether  or  not  I  have  any  interest  in  it,  or  intend  ever  to 

143   Mich.    534;    5    N.    W.    Rep.  3  See    Day    v.    Button,    96    Mich. 

971;    38  Am.   Rep.   213    (1880).  600;   56  N.  W.  Rep.  3    (1893). 

2  Laws  of  1889. 

115 


116  BURTON  V.  TUITE. 

have.  I  also  have  the  right  to  examine  any  title  that  I  see  fit, 
recorded  in  the  public  offices,  for  the  purposes  of  selling  such  in- 
formation, if  I  desire.  No  one  has  ever  disputed  the  right  of 
a  lawyer  to  enter  the  register's  office,  and  examine  the  title 
of  his  client  to  land  as  recorded,  or  the  title  of  the  opponent 
of  his  client,  and  to  charge  his  client  for  the  information  so  ob- 
tained. This  is  done  for  private  gain,  as  a  part  of  the  lawyer's 
daily  business,  and  by  means  of  which,  with  other  labors,  he 
earns  his  bread.  Upon  what  different  footing  can  an  abstracter 
— can  ]Mr.  Burton — be  placed,  within  the  law,  without  giving  a 
privilege  to  one  man  or  class  of  men  that  is  denied  to  another? 
The  relator's  business  is  that  of  making  abstracts  of  title,  and 
furnishing  the  same  to  those  wanting  them,  for  a  compensation. 
In  such  business  it  is  necessary  for  him  to  consult  and  make 
memoranda  of  the  contents  of  these  books.  His  business  is  a 
lawful  one,  the  same  as  is  the  lawyer's,  and  why  has  he  not  the 
right  to  inspect  and  examine  public  records  in  his  business  as 
well  as  any  other  person  ?  If  he  is  shut  out  because  he  uses  his 
information  for  private  gain,  how  will  it  be  with  the  dealer  in 
real  estate,  who  examines  the  records  before  he  buys  and  sells, 
and  buys  or  sells  for  private  gain?  Any  holding  that  shuts 
out  Mr.  Burton  from  the  inspection  of  these  records  for  this 
reason  also  shuts  out  every  other  person  except  the  buyer,  seller, 
or  holder  of  a  particular  lot  of  land,  or  one  having  a  lien  upon 
it,  or  an  agent  of  one  of  them,  acting  as  such  agent  without  fee 
or  reward.  It  cannot  be  inferred  that  the  legislature  intended 
that  this  statute  should  apply  only  to  a  particular  class  of  per- 
sons, as,  for  instance,  those  onlj^  who  are  interested  in  a  par- 
ticular piece  of  land.  'Any  person'  means  all  persons.  I  eaa 
see  no  danger  of  great  abuses  or  inconveniences  likely  to  arise 
from  the  right  to  inspect,  examine,  or  make  note  of  public  rec- 
ords, even  if  such  right  be  granted  to  those  who  get  their  living 
by  selling  the  information  thus  gained.  The  inconvenience  to 
the  office  is  guarded  against  by  the  statute,  which  authorizes 
the  incumbent  to  make  reasonable  rules  and  regulations  with 
reference  to  the  inspection.  And  when  abuses  are  shown  there 
will  no  doubt  be  found  by  the  legislature  or  the  courts  a  remedy 
for  them.  It  is  plain  to  me  that  the  legislature  intended  to 
assert  the  right  of  all  citizens,  in  the  pursuit  of  a  lawful  busi- 
ness, to  make  such  examinations  of  the  public  records  in  public 


BURTON  V.  TUITE.  117 

offices  as  the  necessity  of  their  business  might  require,  subject 
to  such  rules  and  restrictions  as  are  reasonable  and  proper  under 
the  circumstances.  The  respondent  in  this  case  is  the  lawful 
custodian  of  these  sales-books,  and  is  responsible  for  their  safe- 
keeping, and  he  may  make  and  enforce  proper  regulations,  con- 
sistent with  the  public  right,  for  the  use  of  them.  But  they 
are  public  property,  for  public  use,  and  he  has  no  lawful  au- 
thority to  exclude  any  of  the  public  from  access  to  and  exami- 
nation and  inspection  thereof  at  proper  seasons.*  It  follows 
that  he  has  no  right  to  demand  any  fee  or  compensation  for  the 
privilege  of  access  to  the  records,  or  for  any  examination  thereof 
not  made  by  himself  or  his  clerks  or  deputies.  He  has  no  ex- 
elusive  right  to  search  the  records  against  any  other  citizen."^ 
§  115.  Comment  on  Burton  v.  Tuite.  It  will  be  observed 
that  the  petition  in  this  case  was  filed  against  the  city  treasurer, 
who  however,  was  a  custodian  of  public  records  under  the  stat- 
ute, and  not  against  the  register  of  deeds,  and  that  the  case  of 
Webber  v.  Townley,  supra,  was  not  expressly  overruled.  But 
in  a  later  ease,®  where  several  abstract  makers  filed  a  petition 
against  the  register  of  deeds,  it  was  held  that  the  right  to  ex- 
amine the  records  and  files  of  his  office  and  make  memoranda 
therefrom  for  the  purpose  of  making  a  set  of  tract  indices  was 
established  in  Burton  v.  Tuite,  supra,  and  that  Webber  v.  Town- 
ley,  supra,  was  overruled  by  that  case.  In  quite  a  late  case,^ 
where  the  case  of  Burton  v.  Tuite,  supra,  was  under  discussion, 
it  was  said:  "But  in  reality  and  stripped  of  its  dicta,  it  was 
held  *  *  *  that  relator,  who  had  been  employed  by  the 
owner  of  the  property  to  examine  in  regard  to  tax  sales,  or  where 
these  sales  were  liens  upon  property  to  which  he  was  furnishing 
abstracts,  had  the  right  to  make  examinations  of  the  public  rec- 
ords as  the  necessity  of  his  business  might  require,  and  that  this 
right  was  assured  him  under"  the  statute  above  referred  to. 
The  statement  of  the  allegations  of  the  petition  set  out  in  the 
opinion  seems  to  indicate  that  the  relator  desired  access  to  the 

4Lum  V.  McCarty,  39  N.  J.  Law       Mich.    643;     51    N.    W.    Rep.    634 
287.  (1892). 

5  Burton  v.  Tuite,  78  Mich.  363 ;  e  Day  v.  Button,  supra. 

44  N.  W.  Rep.  282;   7  L.   R.  A.  73  estate   v.   Grimes,  Nev. 

(1889).     Aitcheson  v.  Huebner,  90       84  Pac.  Rep.  1061;   5  L.  R.  A.    (n. 

s.)    545    (1906). 


118  PUBLIC  RECORDS. 

records  in  such  specific  cases  rather  than  to  make  indices  to  the 
records  of  tax  sales,  but  the  respondent  placed  his  refusal  to  per- 
mit the  examination  on  the  broad  grounds  that  the  records  were 
not  public,  and  tluit  the  relator  was  an  abstract  maker  who  sold 
the  information  obtained  for  private  gain  and  was  not  an  exam- 
iner for  a  lawful  purpose,  as  contemplated  by  the  statute.  Un- 
der these  issues,  pressed  with  much  bitter  feeling,  a  wide  scope 
v.'as  given  to  the  language  and  argument  of  the  opinion.  In  the 
case  of  State  v.  Grimes,  supra,  in  further  discussion  of  the  opin- 
ion in  the  case  of  Burton  v,  Tuite,  supra,  it  was  said:  "Ap- 
parently these  remarks  met  the  approval  of  Chamberlin,  J.,  who 
concurred  without  qualification,  but  not  of  the  majority  of  the 
court,  for  Campbell,  J.,  whose  concurrence  in  the  judgment  made 
it  effective,  confined  his  opinion  to  the  point  that  the  relator 
had  such  an  interest  under  the  act  mentioned  as  entitled  him  to 
see  the  books  in  question.  Sherwood,  C.  J.,  and  Long,  J.,  did 
n-ot  sit,  and  these  statements  may  be  considered  as  sanctioned 
by  only  two  of  the  five  justices.  The  case  rested  upon  the  Mich- 
igan statute.  No  English  or  other  decision  was  cited  that  sup- 
ported the  assertion  of  Justice  ]\Iorse  that  he  knew  of  no  com- 
mon law  that  denied  the  right  of  free  inspection  or  required  the 
citizens  desiring  to  make  it  to  show  some  interest  in  the  record. 
Although  this  language  is  interesting  as  a  statement  of  the  opin- 
ion of  an  able  member  of  a  court  of  high  standing,  it  was  not 
only  unnecessary  for  the  determination  of  the  case  as  controlled 
by  legislative  enactment,  and  unsupported  by  any  authority  ex- 
cepting the  concurrence  of  one  of  the  justices,  but  it  was  a  beg- 
ging of  the  question,  for,  if  no  common  law  prevails  in  this 
country  which  prevents,  and  there  is  no  decision  sustaining  the 
right  of  an  abstract  company  or  others  to  inspect  or  copy  all 
the  records  in  which  it,  or  they,  have  no  interest  as  owner  or 
agent,  it  is  evident  that  no  such  right  exists  unless  granted  by 
Btatute.  "With  no  decision  conceding  or  denying  such  right,  noth- 
ing appears  on  which  to  base  the  assumption  that  it  is  authorized 
by  common  law."  The  decision  in  Burton  v.  Tuite  must  prob- 
ably be  confined  to  the  points  set  forth  in  the  first  quotation 
from  the  Grimes  case,  and  the  opinion  is  certainly  subject  to 
the  comments  stated  in  the  last  quotation.  The  record  in  the 
case,  as  disclosed  by  the  opinion,  shows  that  the  custodian  of 
the  records  had  treated  the  abstracter  in  an  overbearing  manner 


BURTON  V.  TUITE.  119 

and  that  there  was  much  bad  feeling  between  them.  In  fact, 
after  the  decision  of  the  case,  the  custodian  refused  to  obey  the 
order  of  the  court  and  was  fined  for  disobedience  of  the  writ.* 
Under  such  conditions  the  judge  wrote  an  opinion  which  was  a 
kind  of  protest  against  officialism,  exclusion  and  monopoly, 
and,  judging  from  the  frequency  with  which  it  has  been  quoted, 
the  opinion  has  found  favor  with  those  who  have  been  permitted 
as  a  matter  of  course  to  examine  the  records,  as  has  been  the 
custom  in  most  of  the  counties,  at  least  in  the  middle  and  western 
states. 

If  the  case  of  Burton  v.  Tuite,  supra,  stood  alone,  it  could  not 
be  considered  as  a  satisfactory  authority  to  establish,  under  the 
statute  referred  to,  the  right  of  an  abstracter  to  make  a  set  of 
tract  indices  from  the  records,  but  taken  in  connection  with  a 
later  case  from  the  same  court  ®  and  with  the  force  and  effect 
given  to  it  in  that  case,  it  must  be  looked  upon  as  having  estab- 
lished that  doctrine.  In  Day  v.  Button,  supra,  it  was  said: 
"The  record  seems  to  warrant  the  conclusion  that  respondent 
denies  to  relator  the  use  of  the  records  and  a  place  to  make  mem- 
oranda for  a  set  of  abstract  books,  upon  the  ground  that  he  has 
no  legal  right  to  the  same.  If  the  case  of  Webber  v.  Townley  ^" 
justifies  this  contention,  we  think  the  decisions  of  this  court  in 
the  cases  of  Burton  v.  Tuite  ^^  have  overruled  the  case  of  Web- 
ber V.  Townley  and  established  the  right  of  a  person  to  look 
at  the  records  and  make  memoranda  for  a  set  of  abstract  books. 
This  right  does  not  permit  the  register  to  be  unduly  annoyed  by 
a  large  force,  or  by  work  at  unreasonable  hours,  or  by  the 
monopoly  of  furniture,  office  room  or  records  to  the  exclusioa 
of  other  persons,  or  interfere  with  his  right  to  prescribe  a  rea- 
sonable use  of  the  same.  It  does,  however,  require  that  he  recog- 
nize relator  as  one  of  the  public  and  accord  to  him  reasonable 
privileges  for  the  accomplishment  of  his  purpose.  We  do  not 
feel  called  upon  to  specify  the  number  of  persons  that  respond- 
ent must  accommodate  or  to  prescribe  the  rules  which  he  may 
require  relator  to  observe.  These  should  be  made  with  reference 
to  the  circumstances  and  with  a  view  to  the  reasonable  use  by 

8  Burton  v.  Tuite,  80  Mich.  218;  io43  Mich.   534. 

45  N.  W.  Rep.  88;  7  L.  R.  A.  824.  n  78  Mich.  363  and  80  Mich.  218. 

oDay   V.    Button,   96   Mich.    600; 
56  N.  W.  Rep.  3    (1893). 


120  PUBLIC  RECORDS. 

relator  of  books  and  office.  We  assiune  that,  the  question  of  the 
right  to  use  the  same  being  settled,  the  parties  can  adjust  their 
differences." 

§  116.  Construction  of  statute  in  New  York.  The  laws  of 
New  York  make  it  the  duty  of  the  register  of  deeds  to  permit 
all  persons  to  have  free  access  to  the  books  and  records  of  his 
office  for  search  at  all  reasonable  times,  and  to  exhibit  them  to 
persons  desiring  to  make  such  searches.  It  was  held  that  where 
the  register  refused  to  permit  such  examination  to  be  made  by 
an  abstract  maker  for  the  purpose  of  making  a  set  of  tract  in- 
dices, mandamus  would  be  issued  compelling  him  to  permit  it 
to  be  done."  "Where  the  statutes  give  a  right  of  free  inspection 
of  the  records  to  all  persons  at  proper  times,  and  he  refuses  to 
act  in  compliance  with  the  law,  a  peremptory  writ  will  issue  re- 
quiring him  to  permit  such  inspection  and  examination  to  be 
made  by  a  title  company  and  its  agents,  and  to  permit  the  work 
to  be  done  by  such  a  number  of  persons  so  employed  as  in  the  ex- 
ercise of  his  unbiased  judgment  and  discretion  can  be  permitted 
at  the  same  time  to  pursue  their  searches  in  the  office,  without 
depriving  other  persons  equally  entitled  to  make  searches  of 
title  of  the  convenient  opportunity  for  so  doing,  and  under  the 
restrictions  and  limitations  imposed  by  the  law  regulating  the 
duties  of  his  custodianship.^^ 

Relator  moved  for  a  peremptory  mandamus  commanding  the 
register  of  deeds  to  permit  more  than  three  of  its  employees  to 
make  searches  and  copies  of  records  in  a  certain  department  of 
the  office,  for  use  in  its  business  of  making  abstracts  of  title. 
The  statutes  of  New  York  provided  that  such  records  should  "at 
all  proper  times  be  open  for  the  inspection  of  any  person  paying 
the  fees  allowed  by  law."  The  court  said:  "These  records  are, 
therefore,  public  records  w'hich  every  person  has  the  right  to 
inspect,  examine  and  copy  at  all  reasonable  times  in  a  proper 
way,  and  the  register  cannot  deny  access  to  his  office  or  to  the 
books  for  such  purposes  to  any  person  coming  there  at  a  proper 
time  and  in  an  orderly  manner.  But  he  must  necessarily  have 
control  of  his  office  and  of  the  records,  and  must  have  some  dis- 
cretion to  exercise  as  to  the  manner  in  which  persons  desiring  to 

12  People  V.   Roilly,   38   Hun   429  i3  People  v.  Reilly,  supra. 

(1880).       Hif,'h    on    Extraoidinaiy 
Remedies,  §  43. 


LITERAL  CONSTRUCTION".  121 

inspect,  examine  and  copy  the  records  may  exercise  their  rights. 
He  must  transact  the  current  business  of  the  office  and  allow  all 
persons  reasonable  facilities  to  exercise  their  rights  in  his  office. 
He  cannot  give  the  right  to  one  person  or  one  corporation  to 
occupy  his  office  to  the  exclusion  of  others,  and  each  person  must 
exercise  his  rights  in  the  office  consistently  with  the  exercise  of 
similar  rights  by  others.  It  is  clear  that  this  relator  could  not 
properly  put  twenty-five  or  thirty  men  into  the  office  and  thus 
block  up  the  office  and  interfere  with  the  register  in  the  dis- 
charge of  his  duties.  He  must  have  some  right  to  say  how  many 
persons  the  relator  could  send  there  to  work  at  one  time.  It 
was  finally  agreed  *  *  *  that  three  persons  might  be  placed 
there  to  do  this  work.  It  was  only  when  an  additional  man  was 
attempted  to  be  brought  in  *  *  *  that  the  defendant  made 
serious  objection  on  the  ground  that  no  more  than  three  men 
representing  the  companies  could  be  allowed  there  without  in- 
terfering with  the  current  business  of  the  office.  *  *  *  The 
relator's  right,  therefore,  to  have  greater  facilities  and  privileges 
in  the  office  was  not  so  clear  that  we  can  say  the  court  below 
erred  in  refusing  to  issue  the  peremptory  mandamus,  which  can- 
not always  be  demanded  as  matter  of  right."" 

§  117.  "Any  person"  includes  every  person.  A  statute  of 
"Wisconsin  declared  that  "every. .,  .register  of  deeds.  ..  .shall 
keep  his  office. . .  .open  during  the  usual  business  hours  of  each 
day.  . .  .and  with  proper  care,  shall  open  to  the  examination  of 
any  person  all  books  and  papers  required  to  be  kept  in  his  office, 
and  permit  any  person  so  examining  to  take  notes  and  copies  of 
such  books,  records  or  papers  or  minutes  therefrom ;  and  if  any 
such  officer  shall  neglect  or  refuse  to  comply  with  any  of  the 
provisions  of  this  section,  he  shall  forfeit  five  dollars  for  each 
day  such  non-compliance  shall  continue."  ^^  The  register  of 
deeds  sued  out  a  writ  of  injunction  to  restrain  the  defendant 
from  taking  notes,  copies  and  memoranda  from  the  records  in 
the  preparation  of  a  set  of  private  abstract  books.  The  court 
dissolved  the  injunction  and  said:  "This  language,  literally 
construed,  certainly  includes  the  defendant.  The  words  'any 
person'  when  so  construed  are  distributive  and  include  every 

14  People    ex    rel.    Loan    &   Trust  is  §  700  Rev.  Statutes. 

Co.    V.    Richards,    90    N.     Y.    620; 
1  N.  E,  Rep.  258   (1885). 


122  PUBLIC  RECORDS. 

person.  By  what  authority,  then,  are  we  to  construe  those 
words  as  only  applicable  to  a  particular  class  of  persons,  as  for 
instance,  those  only  who  are  interested  in  the  particular  piece 
of  land,  the  record  of  which  is  sought  to  be  inspected  or  copied? 
If  so,  how  is  the  fact  of  such  interest  to  be  determined — by  the 
applicant  or  by  the  register?  Is  the  register  to  accept  without 
question  the  statement  of  the  applicant  or  may  he  require  other 
evidence?  Of  course,  every  statute  is  to  be  construed  with  ref- 
erence to  its  object  and  subject-matter;  and  in  that  way  it  fre- 
quently occurs  that  general  words  are  limited  in  their  operation. 
Here  the  subject-matter  is  the  examination  of  the  public  books 
and  records  in  the  register's  office  and  the  taking  of  notes,  min- 
utes and  copies  therefrom ;  and  the  statute  requires  the  register 
under  a  penalty  to  'permit  any  person'  to  so  examine  and  take 
notes,  minutes  and  copies.  Under  such  a  statute  can  we  say  that 
when  a  respectable  person,  in  a  respectful  manner,  applies  to 
the  register  to  make  such  examination,  etc.,  he  is  to  be  excluded 
merely  because  he  does  not  belong  to  some  class  of  persons  un- 
named and  undefined  in  the  statute;  or  if  permission  is  given, 
is  his  examination,  etc.,  to  be  confined  to  lands  in  which  he 
or  his  clients  have  a  present  pecuniary  interest?  As  bearing 
upon  the  construction  of  language  thus  sweeping  and  imperative, 
we  venture  a  few  citations."  In  so  far  as  the  Alabama  and 
Michigan  courts  may  have  indicated  that  a  statute  giving 
certain  enumerated  rights  respecting  records  to  'any  person' 
is  a  mere  confirmation  of  a  rule  at  common  law,  giving  similar 
rights  to  only  a  particular  class  of  persons,  we  must  decline 
to  follow  them.  On  the  contrary,  we  must  hold  that  our  statute 
in  question  extends  such  rights  of  examination,  etc.,  to  'any 
person'  applying  to  such  custodian  of  public  records  in  a 
proper  manner,  subject  however  to  the  payment  of  fees  when 
allowed,  and  such  reasonable  supervision  and  control  by  such 
officer  as  are  essential  to  the  convenient  performance  of  his 
duties  and  the  current  business  of  the  public.     It  may  be  that 

18  Citing     Sturges     v.     Crownin-  selves  to  the  words  of  the  legisla- 

shield,    4    Wheat.    204;    Gibbons    v.  ture,  nothing  adding  thereto,  noth- 

Ogden,    9   Wheat.    217;    Harrington  ing      diminishing."       Comstock     v. 

V.  Smith,  28  Wis.  60;   Laughter  v.  Bechtel,    63    Wis.    661;     U.    S.    v. 

Seela.  59  Tex.  180;  Everett  V.  Wells,  Wiltbcrger.    5    Wheat.    95.       In    re 

2    Scott    N.    R.    531.       "It    is    the  Coy,  31  Fed.  Rep.  800, 
duty  of  all  courts  to  confine  them- 


LITERAL  CONSTRUCTION.  123 

some  more  definite  regulations  should  be  made  in  such  matters, 
but  that  is  a  question  for  the  legislature  and  not  for  us."  ^^ 

§  118.  Records  open  to  the  public.  A  statute  of  Florida 
provided:  "Such  records  shall  be  always  open  to  the  public 
under  the  supervision  of  the  clerk  for  the  purpose  of  inspection 
thereof  and  of  making  extracts  therefrom."  In  construing 
this  statute  the  court  said:  "It  will  be  observed  that  no  limita- 
tion is  prescribed  by  this  statute  as  to  the  extent  or  duration 
of  the  right  of  access  by  the  public  to  such  records  or  to  the 
making  of  extracts  therefrom,  but  on  the  contrary,  its  language 
is  emphatic  that  'such  records  shall  be  always  open  to  the 
public/  for  the  purpose  of  inspection  and  making  extracts 
therefrom.  Some  of  the  cases  relied  upon  by  the  respondent 
hold  to  the  doctrine  that  no  person  has  any  such  right  of  in- 
spection and  extracting  unless  he  is  presently  or  prospectively 
interested  in  some  particular  title  that  he  desires  to  investigate. 
Our  statute  imposes  no  such  condition  or  limitation — but  its 
language  in  the  broadest  terms  declares  that  such  records  shall 
be  always  open,  not  to  those  members  of  the  public  only  who 
may  be  presently  or  prospectively  interested  in  some  particular 
matter  contained  in  such  records,  but  'to  the  public'  Besides 
this  even  were  we  to  hold  that  the  lounging  loiterer  on  idle 
curiosity  bent  could  with  propriety  be  excluded  from  inspection 
of  such  records  and  from  taking  extracts  therefrom,  yet  this 
should  not  warrant  the  exclusion  of  the  person  engaged  in  the 
lawful  and  highly  useful  enterprise  of  compiling  an  abbreviated 
abstract  of  the  titles  to  all  the  different  pieces  of  real  estate 
in  a  county,  aggregating  therein  in  condensed  and  convenient 
form  all  the  matter  from  all  of  such  records  that  affects  each 
individual  parcel  of  such  real  estate.  Such  abstracts  are  great 
time  and  money  savers  to  the  public  generally,  and  are  at 
times  quite  remunerative  to  the  compilers  and  owners  thereof, 
and  in  the  enterprise  of  compiling  them  the  compilers  become 
presently  and  prospectively  materially  interested  in  every  par- 
ticle of  information  disclosed  by  such  records,  whether  they  be 

"Hanson  v.  Eichstaedt,  69  Wis.  621;  57  N.  E.  Rep.  535  (1900). 
538;  35  N.  W.  Rep.  30  (1887).  State  v.  Meeker,  19  Neb.  lOG;  26 
See  also    State  v.   King,   154   Ind.       N.  W.  Rep.  620    (1886). 


124  PUBLIC  RECORDS. 

presently  or  prospectively  interested  in  the  particular  properties 
affected  thereby  or  not."^® 

§  119.  Records  open  for  making  abstracts.  The  statutes  of 
]\Iinnesota  as  amended  in  1885  provided  for  the  right  to  inspect 
the  public  records  and  papers  in  the  office  of  the  register  of 
deeds  "either  for  examination,  or  for  the  purpose  of  making 
or  completing  an  abstract  or  transcript  therefrom."  On  the 
application  of  an  abstract  maker  for  a  writ  of  mandamus  against 
the  register  of  deeds,  the  court,  in  construing  the  amendment 
of  1885,  said:  "As  the  contention  of  the  appellant  rests  en- 
tirely on  a  single  proposition  of  law,  it  is  only  necessary  to 
say  that  it  appears  from  the  petition  that  the  respondents  were 
engaged  in  the  abstract  business,  preparing  and  furnishing 
to  any  and  all  persons  desiring  them  correct  abstracts  of  title 
to  any  tract  of  land  in  Le  Sueur  county ;  that  in  this  business 
it  is  necessary  to  make  what  are  called  'tract  indexes,'  which 
will  show,  under  the  designation  of  each  tract  or  lot  of  land, 
all  conveyances  or  liens  affecting  the  same;  and  what  they 
claimed  was  the  privilege  of  inspecting  and  examining  the 
public  records  in  the  register's  office,  and  making  abstracts  or 
transcripts  therefrom,  for  the  purpose  of  preparing  their  'tract 
indexes.'  The  counsel  for  appellant  plants  himself  squarely 
upon  thfi  broad  proposition  that  respondents  are  not  entitled 
to  any  such  privileges,  because  they  have  no  interest  in  the 
records  which  they  desire  to  examine.  His  contention  may  be 
briefly  stated  thus:  (1)  At  common  law  no  person  had  a  right 
to  examine  or  copy  the  records  in  a  public  office  in  which  he 
had  no  interest,  present  or  prospective.  (2)  That  the  statute 
does  not  extend  this  right  to  others,  but  merely  regulates  its 
exercise  by  those  who  already  possessed  it  at  common  law. 
Conceding  that  the  rule  at  common  law  was  as  stated,  the 
question  is,  how  far  has  this  been  changed  by  Gen.  St.  1878, 
C.  8,  §  179,  as  amended  by  Laws  1885,  C.  116?  In  view  of  its 
very  strong  and  general  language,  we  are  strongly  inclined 
to  think  that  the  original  statute  gave  to  every  person  a  right 
to  inspect  and  examine,  at  all  reasonable  times,  and  in  a 
proper  way,  all  public  records  in  the  office  of  the  register  of 
deeds,  whether  he  had  any  interest  in  them  or  not,  subject,  of 

"State  V.  McMillan,  49  Fla.  243;    38   So.   Rep.  CCG    (1905). 


LITERAL  CONSTRUCTION.  125 

course,  to  such  reasonable  rules  as  might  be  necessary  to  secure 
the  safety  of  the  records,  and  provided  it  was  done  in  such  a 
way  as  not  to  interfere  with  the  proper  performance  of  the 
official  duties  of  the  register  of  deeds.  But  however  this  might 
ha\e  been,  we  think  the  matter  is  entirely  put  at  rest  by  the 
amendment  of  1885.  It  is  a  matter  of  common  knowledge  that 
at  the  time  this  amendment  was  passed,  in  a  large  majority  of 
counties  in  this  state,  persons  had  engaged  in  the  abstract 
business,  and  at  much  expenditure  of  time  and  money  had 
prepared,  or  were  preparing,  these  abstract  books  or  tract 
indexes.  These  abstract  offices,  if  properly  conducted,  are  of 
great  public  convenience,  because  for  well-known  reasons  they 
are  usually  the  only  place  where  abstracts  of  title  can  be 
conveniently  obtained.  It  is  essential  to  the  convenient  and 
proper  transaction  of  the  business  that  those  engaging  in  it 
provide  themselves  with  these  tract  indexes.  This  can  only 
be  done  by  examination  of  the  records  in  the  register's  office, 
and  making  copies  or  abstracts  of  the  same.  The  right  to 
do  this  had  been  usually  exercised  and  conceded  without  ques- 
tion. But  in  some  instances  the  right  had  been  denied,  and 
disputes  and  even  litigation  over  the  matter  had  arisen  between 
the  registers  and  the  abstract  men.  Under  this  state  of  affairs, 
the  legislature  enacted  the  amendment  referred  to,  which 
throughout  bears  clear  evidence  of  being  intended  to  define  and 
fix  the  right  of  all  who  might  desire  to  make  copies  of  or 
abstracts  from  any  of  these  records.  While  its  operation  is 
not  confined  to  those  engaged  in  the  so-called  abstract  business, 
yet  in  its  language  and  general  scope  it  shows  that  these  were 
prominently  in  the  mind  of  the  legislature.  The  original  statute 
gave  to  every  one  demanding  it  the  right  to  'inspect'  these 
records.  But  as  there  might  be  doubt  what  the  right  of  in- 
spection included,  the  amendment  adds,  either  for  examination, 
or  for  the  purpose  of  making  or  completing  an  abstract  or 
transcript  therefrom.  As  indicating  what  and  whom  the  leg- 
islature had  in  mind,  the  act  further  provides  that  the  county 
commissioners  may  permit  any  person  having  a  set  of  abstracts 
of  titles  to  occupy  a  part  of  the  county  building  for  an  office. 
Taking  the  whole  act  together,  and  construing  it  in  the  light 
of  the  circumstances  existing  at  the  time  of  its  passage  and 
which  probably  suggested  its  enactment,  we  have  no  doubt  that 


126  PUBLIC  RECORDS. 

its  meaning  and  intent  is  to  give  to  every  one  the  right  of 
inspection  of  these  public  records,  either  for  examination,  or 
for  the  purpose  of  making  or  completing  an  abstract  or  tran- 
script therefrom,  whether  they  have  any  interest  in  such  records 
or  not.  Of  course  this  right  is  subject  to  the  limitations  ex- 
pressed or  implied  by  the  act.  What  these  are  does  not  con- 
cern us  here,  but  we  may  say  generally  that  it  is,  of  course, 
subject  to  such  reasonable  rules  as  the  register  of  deeds  may 
prescribe  to  insure  the  safety  of  the  public  records  intrusted 
to  his  official  custody;  and  the  act  expressly  provides  that  it 
does  not  give  to  any  person  the  right  to  use  the  records  when 
it  would  interfere  with  or  hinder  the  register  in  the  performance 
of  his  official  duties.  "^° 

§  120.  Examination  of  fiscal  affairs  of  county.  Where  the 
statute  provided  that  all  books,  papers  and  documents  of  the 
county  should  be  open  to  the  inspection  of  "any  person,"  it 
was  held  that  a  citizen  and  taxpayer  of  the  county  had  such 
an  interest  as  entitled  him  to  examine  the  records  and  papers 
in  the  county  auditor's  office  for  the  purpose  of  ascertaining 
the  condition  of  the  fiscal  affairs  of  the  county.  The  court 
said:  "The  general  rule  which  obtained  at  common  law  was 
that  every  person  was  entitled  to  an  inspection  of  public  records, 
by  himself  or  agent ;  provided  he  had  an  interest  in  the  matters 
to  which  such  records  related.  Where,  however,  the  inspection 
desired  was  merely  to  gratify  idle  curiosity  or  motives  which 
were  purely  speculative,  the  right  of  inspection,  under  the 
common  law,  was  denied.  The  right  to  inspect  the  records 
in  question  also  impliedly  awards  to  the  person  entitled  to  it 
sufficient  time,  under  the  circumstances,  in  which  to  make  the 
inspection  for  the  purpose  contemplated.  We  are  constrained, 
therefore,  to  conclude  that  the  relator  in  this  case,  under  the 
facts,  is  entitled  to  the  inspection  which  he  demands,  and  also 
entitled  to  make  such  copies  and  abstracts  of  the  records  as 
may  avail  him  in  carrying  out  the  purpose  of  his  examina- 
tion. "^^ 

§  121.     Clerk  must  certify  judgments.     A  statute  of  Minne- 

10  state  V.  Rachac,  37  Minn.  372;  57  N.  E.  Rop.  535  (1900).  See 
35  N.  W.  Rep.  7    (1887).  Clay   v.    Ballard,    87    Va.    787;    13 

20  State   V.   King,    154    Ind.   621;       S.  E.  Rep.  262   (1891). 


CERTIFY  JUDGMENTS.  127 

sota  provided:  *' Wherever  information  as  to  the  contents  of 
any  of  said  books  respecting  the  existence  or  docketing  or 
satisfaction  of  judgment  is  required  for  the  purpose  of  making 
or  certifying  abstracts  of  title,  any  person  requiring  such  in- 
formation shall  apply  to  the  clerk  therefor.  And  said  clerk 
shall  at  once  make  search  and  certify  the  result  of  such  search 
under  his  hand  and  the  seal  of  said  court,  giving  the  name  of 
the  party  against  whom  any  judgment  appears  of  record,  the 
amount  of  such  judgment  and  the  time  of  its  entry  and  of  its 
satisfaction"  (if  satisfied).  The  relator,  an  abstracter  of  titles, 
tendered  the  requisite  fees  and  requested  the  clerk  to  prepare 
and  furnish  a  certified  transcript  of  the  docket  entries  of  all. 
judgments  and  satisfactions  of  judgments  docketed  in  his  office 
during  a  certain  month.  During  that  month  seven  judgments 
and  one  satisfaction  of  judgment  were  entered.  The  relator 
tendered  the  requisite  fees  and  requested  certified  transcripts 
of  each  of  these,  particularly  describing  them.  The  clerk  re- 
fused to  comply  with  such  requests  and  justified  his  action 
on  the  ground  that  relator  proposed  to  issue  such  certificates 
in  preparing  abstracts  of  title  in  his  business  as  an  abstracter, 
and  he  insisted  that  the  statute  just  quoted  must  be  taken  as 
a  limitation  on  the  right  of  an  abstracter  to  require  the  clerk 
to  certify  judgments  at  any  time  or  in  any  other  manner  than 
on  each  separate  abstract  of  title  prepared  by  him.  But  the 
court  held  that  this  position  was  not  sound,  and  that  it  was  the 
duty  of  the  clerk  to  issue  the  certificates  which  had  been  re- 
quested of  him.^^ 

21  State  V.   Scow,   93   Minn.    11  j     100  N.  W.  Rep.  382   (1904). 


CHAPTER  XII. 

INSPECTION  OF  RECORDS;   RIGHT  OF  OFFICER  TO  FEES. 

§  122.  Right  of  officer  to  fees.  As  we  have  seen  on  many 
preceding  pages,  there  are  several  things  to  be  taken  into  con- 
sideration in  determining  whether  or  not,  and  the  extent  to 
which,  one  is  entitled  to  inspect,  abstract  and  copy  the  public 
records,  but  the  most  delicate  and  embarrassing  element  which 
may  enter  into  the  question  has  been  touched  upon  only  inciden- 
tally and  remains  to  be  considered  at  some  length.  The  right  to 
search  the  records  may  be  modified  or  limited  to  some  extent 
by  the  right  of  the  officer  in  charge  to  the  payment  of  fees. 
The  compensation  of  the  officer  may  be  derived  entirely  or  in 
part  from  fees  which  he  is  permitted  by  law  to  charge  for 
certain  services.  It  is  necessary  and  proper  that  he  should  be 
protected  in  his  right  to  demand  fees  under  the  law.  In  con- 
sidering the  question  of  fees  of  county  officers  it  must  be 
remembered  that  an  office  created  by  a  statute  is  wholly  within 
the  control  of  the  legislature,  and  that  the  emoluments  of  the 
office  may  be  fixed  and  abolished  by  the  legislature.  Records 
are  not  kept  as  a  revenue  measure  for  the  state  or  county, 
and  they  are  not  kept  for  the  private  gain  of  the  officer  in 
charge  of  them.^  They  are  created  as  a  matter  of  public 
policy,  for  the  purpose  of  giving  information  as  to  the  state 
and  condition  of  titles.  The  fee-bills  for  services  rendered 
by  the  officers  in  charge  are  merely  administrative  incidents 
to  the  general  design  of  the  offices.  Nevertheless,  a  fee-bill  is 
a  statute  making  fees  appurtenant  to  the  office,  and  rights 
under  it  are  entitled  to  the  protection  of  the  law. 

§  123.  Right  of  officer  to  fees  from  interested  person,  general 
law.  In  the  absence  of  any  provision  of  the  statutes  for  access 
to  the  county  records,  any  person  has  a  right  to  examine  such 
records  as  he   is  interested   in,   without  the  payment   of   fees 

iln   re   Chambers,   44   Fed.    Eep.  780    (1S91). 

128 


FROM  INTERESTED  PERSON.  129 

to  the  officer  in  charge.  The  records  are  no  less  free  to  one 
who  is  interested  because  there  is  no  statute  giving  the  right 
of  free  access.  They  are  in  fact  public  records  and  public 
property  designed  for  use  by  those  interested  in  them.  The 
fact  that  they  are  constructive  notive  to  an  interested  person 
gives  him  a  corresponding  right  to  the  information  contained 
in  them.  The  officer  may  charge  an  interested  searcher  under 
the  fee-bill  for  any  service  specified  in  it  and  required  of  him, 
but  he  is  not  entitled  to  charge  for  the  general  watchfulness 
and  supervision  of  the  records  which  it  is  his  duty  to  keep. 
In  matters  pertaining  to  affairs  of  business  the  law  does  not 
compel  a  man  to  exercise  his  rights  in  person,  but  permits  him 
to  act  by  an  attorney  or  agent,  and  a  lawyer,  an  abstracter  or 
other  agent  of  a  person  interested  in  a  title  or  titles  to  real 
estate,  may  examine  the  county  records  for  such  person,  and 
may  make  abstracts  of  them,  and  if  his  knowledge  of  the  records 
is  such  that  he  requires  no  service  from  the  officer  in  charge 
other  than  the  general  service  as  custodian  of  the  records,  the 
officer  is  not  entitled  to  any  fee  or  compensation.  Under  the 
general  law,  where  the  officer  in  charge  is  not  required  to  render 
any  other  service  than  as  custodian  of  the  records,  an  ab- 
stracter may  examine  or  copy  any  records  in  which  his  principal 
is  interested,  and  may  search  the  records  in  any  county  office 
to  discover  the  existence  or  non-existence  of  anything  of  record 
which  may  affect  the  title  under  examination  for  his  principal, 
without  the  payment  of  fees.  Some  one  of  the  different  ele- 
ments of  this  rule  is  laid  down  in  each  of  the  opinions  in 
cases  in  which  the  right  of  inspection  has  been  discussed.  In 
each  individual  case  the  rule  has  been  applied  so  far  as  it  was 
involved,  and  there  is  no  decision  in  which  it  has  been  con- 
troverted. But  the  discussions  and  arguments  in  many  opinions 
have  tended  to  confuse  rather  than  to  make  plain  the  subject 
of  the  right  of  an  abstracter  to  examine  the  records,  and  of 
the  extent  to  which  he  may  use  them.  Of  these  opinions  it 
has  been  said:  "The  principle  involved  has  been  befogged  by 
many  inadvertent  statements  of  judges."^  These  statements, 
arguments  and  discussions  all  tend  to  insist  that  the  rule  must 
not  and  cannot  be  carried  to  its  logical  conclusion,   and  that 

2  state  V.   Grimes,  Nev.  ;       84  Pac.  Rep.  1061;   5  L.  R.  A.    (n. 

s.)    54o    (1906). 
9 


130  FEES  OF  OFFICER, 

an  abstracter  may  not  make  continuous  use  of  the  county  offices 
and  county  records  in  the  prosecution  of  his  business  whether 
as  agent  or  in  his  own  right.  In  a  few  cases  in  which  the 
general  law  was  discussed,  the  distinction  was  sharply  drawn 
between  an  abstracter  who  represented  an  interested  person 
and  an  abstracter  who  was  claiming,  as  a  stranger,  the  right 
to  examine  all  the  records,  ^  but  in  too  many  of  the  cases  the 
arguments,  statements  and  discussions  were  directed  to  show 
the  dangers,  inconveniences  and  injustices  which  would  arise 
if  abstracters  were  to  be  permitted  to  examine  and  copy  the 
public  records  in  the  conduct  of  their  business,  and  the  judges 
who  wrote  the  opinions  seemed  totally  oblivious  of  the  fact 
that  abstracters  had  the  right  to  inspect  the  records,  and  occupy 
the  county  offices  continuously  as  agents  of  interested  persons, 
subject  to  reasonable  rules  and  regulations.* 

§  124.  Abstracter  may  act  as  agent  for  many  interested  per- 
sons. If  a  lawyer  or  abstracter  may,  without  the  services  of 
the  custodian  and  without  the  payment  of  fees,  examine  the 
records  and  make  a  complete  abstract  of  title  for  one  interested 
person,  he  may  do  so  for  several  or  even  for  many  such  persons. 
He  may  act  for  so  many  such  persons  that  he  and  his  numerous 
assistants  may  be  continuously  in  the  county  offices  during  the 
business  hours  of  every  business  day  in  the  year.  A  few  years 
ago  the  work  of  making  abstracts  was  scattered  among  the 
members  of  the  bar,  each  for  his  own  client  examining  the  title 
to  property  in  which  such  client  was  interested,  but  the  records 
Jjave  become  so  numerous,  and  the  work  has  become  so  com- 
plicated, that  abstracts  may  be  made  with  safety  only  by  experts 
ivho  devote  their  entire  time  to  the  work.  But  the  rule  is  the 
same  whether  those  who  make  abstracts  are  many  or  few.     As 

3  state  V.  Grimes,  supra.  New-  'Am,  Rep.  236  (1874).  Bean  v. 
ton  V,  Fisher,  98  N.  C.  20;  3  S.  E.  People,  7  Colo,  200;  2  Pac,  Rep. 
Bep.  822  (1887).  Bell  v.  Title  909  (1883).  Cormack  v,  Wolcott, 
Co,,  189  U.  S.  131;  23  Sup.  Ct.  37  Kan.  391;  15  Pac.  Rep.  245 
Rep.  569  (1900).  Boylan  v.  War-  (1887).  Belt  v.  Abstract  Co.,  73 
rcn,  39  Kan.  301;  18  Pac.  Rep.  Md,  289;  20  Atl.  Rep.  982;  10 
174;  7  Am.  6t,  Rep.  551  (1888).  L.  R.  A.  212;  30  Am.  Law  Reg. 
Randolph  .v.  State.  82  Ala.  527;  (n,  s.)  56  (1890).  Webber  v. 
2  So.  Rop.  714;  60  Am,  Rep.  761  Townloy,  43  ]\Iich.  534;  5  N,  W. 
(1886.).  Rep,  971;  38  Am,  Rep.  213   (1880). 

4  Buck  V,  •Collins,  51  Ga,  391;  21 


ABSTRACTER  DIMINISHES  FEES.  131 

was  said  in  one  case:  *'The  same  right  of  inspection  exists 
whether  one  is  examining  only  the  title  to  a  single  piece  of  real 
estate  or  the  title  to  a  hundred.'"^  It  is  the  permanent  and 
continuous  use  of  the  county  offices  by  abstracters,  which  has 
caused  comment  in  some  cases,  and  which  is  the  foundation  for 
the  charge  that  abstracters  make  use  of  such  offices  in  an 
unreasonable  manner  and  to  an  unreasonable  extent.  Of  course 
it  is  to  be  assumed  that  the  abstracter  obeys  all  reasonable 
rules  and  regulations  and  does  not  interfere  with  the  due  ad- 
ministration of  the  office,  and  that  the  references  to  the  un- 
reasonable manner  and  extent  of  the  use  apply  only  to  the 
continuous  occupation  of  the  offices  and  the  number  of  persons 
assisting  in  the  work.  An  abstracter  representing  interested 
persons  in  his  work  will  take  less  time  and  space  in  the  office 
in  doing  a  given  amount  of  examination  than  his  principals 
would  take  if  they  were  to  attempt  to  perform  such  technical 
and  unusual  labor,  and  an  abstracter  at  work  in  a  public 
office  illustrates  the  economy  in  the  division  of  labor,  in  the 
time  and  space  occupied,  in  the  handling  of  the  records  and 
in  the  attention  to  be  given  to  the  records  by  the  custodian. 
If  more  space  and  assistants  are  required  in  the  county  offices 
in  order  to  accommodate  the  representatives  of  interested  per- 
sons in  the  examination  of  the  records,  they  should  be  furnished 
by  the  public  authorities  in  order  to  carry  out  the  design  of 
the  establishment  of  them.''  In  order  to  effect  this  design  it 
is  accessary  that  each  interested  person,  either  in  person  or 
by  his  agent,  shall  have  every  proper  facility  for  examining 
deeds,  mortgages,  mechanic 's  liens,  judgments,  attachments,  taxes, 
special  assessments  and  any  other  matters  affecting  titles  to 
real  estate  or  affecting  in  any  way  their  property  interests.''' 
§  125.  Abstracter  diminishes  fees  and  emoluments  of  offices. 
It  has  frequently  been  suggested  that  an  abstracter  by  the  con- 
tinuous use  and  occupation  of  the  county  offices  will  diminish 
the  fees  and  emoluments  of  the  offices  and  carry  on  a  rival 
business  in  the  offices  of  his  competitors.  Here,  again,  the 
distinction  must  be  made.  He  may  not  use  and  occupy  the 
county  offices  for  the  examination  of  records  to  which  he  is 

5  Bell  V.  Ttitle  Co.,  supra.  7  See  §  57. 

6  In   re  Chambers,   44   Fed.   Rep. 
786   (1891). 


132  FEES  OF  OFFICER. 

a  strang:er,  without  legislation  enabling  hira  so  to  do,  but  in 
the  absence  of  a  statute  excluding  all  persons  from  access  to 
and  examination  of  the  public  records,  or  giving  to  the  officer 
the  power  to  charge  fees  for  work  not  actually  done  by  him, 
he  may  represent  an  interested  person  in  the  examination  of 
records,  without  the  payment  of  fees  to  the  officer.  This  is 
the  general  law  as  to  the  inspection  of  public  records  by  one 
interested  in  them,  and  there  is  no  legal  distinction  to  be  drawn 
between  an  ordinary  member  of  the  public  who  is  interested 
in  the  examination  of  the  records,  and  his  agent  for  the  purpose 
of  that  examination; — even  though  the  latter  be  one  who  makes 
a  business  of  examining  the  records  for  hire.  This  rule  applies 
even  though  the  abstracter  is  to  certify  as  to  the  state  of  the 
records,  or  is  to  issue  a  policy  of  title  insurance,  and  is  to 
charge  his  principal  for  the  service,  for  when  an  abstracter 
examines  a  particular  title  for  an  interested  person,  he  is 
subrogated  to  the  rights  of  his  principal  whose  right  to  make 
the  examination  in  person  must  be  admitted.  The  real  occasion 
and  necessity  for  the  examination  of  the  records  for  the  pur- 
pose of  ascertaining  the  true  state  of  the  title,  and  the  existence 
or  non-existence  of  liens  or  incumbrances  on  it,  is  not  done 
away  with  by  the  mere  fact  that  the  agent  making  the  exam- 
ination proposes,  on  the  strength  of  the  examination,  and  for 
a  compensation,  to  certify  as  to  the  result  of  the  search.^ 

It  has  been  suggested  that  an  abstracter,  occupying  continu- 
ously a  county  office  in  the  carrying  on  of  his  business  as  the 
agent  of  other  persons,  is  conducting  his  business  in  opposition 
to  and  as  a  rival  of  the  officer  in  the  office  of  the  latter.  Cer- 
tainly he  must  not  be  permitted  to  conduct  his  business  in  a 
public  office;  he  may  there  only  conduct  the  examination  which 
he  has  been  employed  to  make.  System  is  a  requisite  of  any 
abstract  office,  and  the  taking  of  orders  for  abstracts  and  the 
management  of  the  business  must  be  done  in  the  office  of  the 
abstracter.  He  may,  however,  make  his  examination  of  the 
records  in  the  county  offices  as  the  agent  of  an  interested  person, 
without  the  payment  of  fees,  unless  the  rule  has  been  changed 

« West  Jersey   Title   Co.    v.   Bar-  appeal  that  the  title  company  did 

ber,  49  N.  J.  Eq.  474  (1892),    This,  not   represent  an  interested   person 

case  was  reversed  in  53   N.  J.  Eq.  and   that  the   principles  laid   down 

158    (1895)   because  it  was  held  on  in  tlie  former  case  did  not  apply. 


STATUTORY  FEES.  133 

by  legislation.  Without  an  appropriate  statute,  a  county  officer 
has  no  exclusive  right  to  search  the  records  in  his  office,  as 
against  an  interested  person,  and  has  no  right  to  fees  from 
such  a  person  unless  he  earns  them. 

§  126.  Statutes  prescribing  fees  for  county  officers.  Courts 
have  nothing  to  do  with  the  mere  question  of  policy  in  the 
enactment  of  statutes,  "When  proper  statutes  have  been  passed 
on  a  subject,  they  may  be  brought  before  the  courts  for  con- 
struction. The  legislature  has  power  to  enact  statutes  govern- 
ing the  inspection  of  public  records,  and  in  most  states  such 
statutes  have  been  passed.  It  is  for  the  courts  to  determine 
how  far  they  have  modified  and  changed  the  general  law.  It 
is  now  proposed  to  state  or  review  certain  cases  which  have  been 
decided  under  statutes  prescribing  fees  for  county  officers. 

§  127.  Some  statutes  which  do  not  change  the  general  law. 
Plaintiff's  attorney  went  to  the  office  of  the  defendant,  who 
was  then  county  clerk,  and  demanded  admission  and  access  to 
certain  records  of  conveyances  and  certain  other  books  in  the 
office,  for  the  purpose  of  examining  them.  He  was  refused 
such  admission  and  access,  unless  he  would  agree  to  pay  de- 
fendant the  same  fees  for  the  privilege  of  examining  those 
records  and  books  as  the  latter  would  be  entitled  by  law  to 
charge  if  he  should  himself  make  the  proposed  examination. 
The  attorney  yielded  to  the  demand  and  paid  the  fees  under 
protest.  Afterward  suit  was  brought  by  the  client  to  recover 
back  the  money.  Under  an  "act  to  regulate  fees,"  provision 
was  made  for  the  compensation  of  county  clerks  for  certain 
services,  among  which  was  the  searching  of  the  records  in  their 
offices,  but  the  compensation  was  expressly  confined  to  services 
performed  by  them.  The  act  respecting  conveyances  provided 
for  recording  deeds  in  books  to  be  furnished  for  the  purpose, 
"to  which  books  every  person  shall  have  access  at  proper 
seasons  and  be  entitled  to  transcripts  from  the  same,  on  paying 
the  fees  allowed  by  law."  It  was  held  that  the  provisions  for 
fees  could  not  be  extended  by  construction  so  as  to  authorize 
the  demand  by  the  clerk  from  an  interested  person  for  services 
not  in  fact  rendered  by  him  or  his  assistants.  The  court  said: 
"The  right  of  the  public  to  free  access  to  the  record  carries 
with  it  the  right  to  search  without  charge  for  the  privilege. 
*     *     *     The  searches  for  which  compensation  is  thus  provided 


134  FEES  OF  OFFICER. 

are   those   which   may    be   made   by   himself   or   his   assistants. 
*     *     *     He  has  no  exclusive   right  to  search  the  records."* 

§  128.  The  code  of  West  Virginia  provides  that  "the  records 
and  papers  of  every  court  shall  be  open  to  the  inspection  of 
any  person,  and  the  clerk  shall,  when  required,  furnish  copies 
thereof,  except  in  case  where  it  is  otherwise  specially  provided." 
It  prescribes  in  the  most  elaborate  and  detailed  manner  every 
particular  service  to  be  performed  by  the  clerk,  for  which  he 
may  make  a  charge,  and  it  fixes  the  amount  which  may  be 
charged  for  each  service.  It  makes  this  allowance:  '*For  a 
search  for  anything  in  his  office  over  a  year's  standing,  twenty- 
five  cents,"  and  "for  any  copy,  if  it  be  not  otherwise  provided 
for,  three  cents  for  every  thirty  words."  Mandamus  was 
brought  by  the  relator,  "as  a  person,  and  as  commissioner  of 
accounts  of  said  county  and  as  a  citizen  of  said  county"  to 
compel  the  clerk  to  permit  him  to  inspect  the  records.  The 
clerk  claimed  that  he  was  not  entitled  to  inspection  unless  and 
until  he  had  paid  a  fee  for  it.  The  court  held  that  if  the  clerk 
was  requested  to  make  a  search,  and  the  matter  was  of  over 
one  year's  standing,  he  might  charge  twenty-five  cents,  or  if 
he  made  a  copy  of  a  record,  he  might  charge  three  cents  for 
every  thirty  words,  but  that  any  person  interested  was  at 
liberty,  whenever  he  desired  to  do  so,  to  inspect  the  books  and 
papers  in  the  office  without  the  payment  of  fees.^*' 

§  129.  The  statutes  of  Nevada  contained  no  provision  that 
the  records  in  the  recorder's  office  should  be  open  to  inspection 
by  any  person,  free  of  charge.  They  designated  certain  fees 
"for  abstracts  of  title  for  each  document  embraced  thereby" 
and  "for  searching  records  and  files  for  each  document  neces- 
sarily examined,"  but  contained  no  words  either  authorizing 
or  prohibiting  the  making  of  abstracts  or  searches  by  others 
than  the  recorder,  or  specifying  whether  he  should  be  entitled 
to  compensation  if  the  work  was  not  performed  by  himself 
or  his  deputies.  Under  this  condition  of  the  statute  law,  the 
question  was  presented  to  the  court  as  to  the  extent  to  which 
a  company  engaged  in  furnishing  abstracts  and  insuring  titles 

oLum   V.   McCarty,   39    X.    J.    L.        10    S.    E.    Rep.    578     (1892).       See 

287    (1877).  Payne  v.  Staunton,  .55  W.  Va.  202, 

10  State  V.  Long,  37  W.  Va.  266;       p.  214;   46  S.  E.  Rep.   727    (1904). 


STATUTORY  FEES.  135 

should  be  permitted  to  inspect,  examine  and  copy  such  rec-rds, 
without  the  payment  of  fees.  It  was  held  that  since  the  filing 
of  instruments  for  record  imparted  notice  of  the  contents  of 
them  to  all  persons,  anyone  interested  in  them  had  the  right 
to  inspect  and  copy  them  or  to  employ  others  to  do  so  for  him. 
It  was  ordered  that  the  recorder  permit  the  abstract  company, 
its  agents  and  employees,  free  of  charge,  during  regular  business 
hours,  to  inspect  and  make  memoranda  and  copies  of  all  files 
and  records  in  his  office,  in  so  far  as  they  related  to  any  current 
or  depending  transactions  in  which  the  company  was  employed 
to  make  searches,  furnish  abstracts  or  insure  titles,  by  persons 
owning,  having  any  incumbrance  or  lien  upon,  or  interest  in, 
or  seeking  to  acquire  by  purchase,  bond,  contract,  attachment, 
execution,  mortgage,  lien  or  incumbrance  any  interest  in  prop- 
erty; the  examination  and  taking  of  memoranda  or  copies  to 
be  made  at  such  times  and  under  such  circumstances  as  would 
not  prevent  the  recorder  or  his  assistant  from  discharging  their 
duties,  or  interfere  with  the  right  of  other  persons  to  have 
access  to  the  records.  The  privilege  sought  by  the  abstract 
company,  of  inspecting  and  taking  memoranda  of  all  the  records, 
free  of  charge,  for  the  purpose  of  compiling  an  independent 
set  of  abstract  books  and  tract  indices  covering  all  the  property, 
to  which  such  records  related,  was  denied." 

§  130.  Statute,  no  right  to  search  without  payment  of  fees. 
It  is  within  the  power  of  the  legislature  to  place  conditions 
on  the  right  of  any  person  to  search  the  records  or  to  take 
copies  of  or  memoranda  from  them.  In  the  cases  now  to  be 
noted  it  was  held  that  the  legislature  had  taken  away  from 
those  interested  the  right  to  search  the  records  without  payment 
of  fees.  The  constitution  of  Maryland  provided  that  the  sal- 
aries and  compensation  of  clerks  of  the  circuit  court,  their 
"assistants  and  office  expenses,  shall  always  be  paid  out  of 
the  fees  or  receipts  of  the  offices  respectively."  The  code  of 
the  state  provided  that  "every  clerk  shall  have  the  custody 
of  the  books  and  papers  pertaining  to  his  office"  and  "shall 
give  a  copy  of  any  paper  or  record  in  his  office  to  any  person 
applying  for  the  same,  upon  being  paid  the  usual  fees  for 
transcribing   such   paper   or   record."     It   also   prescribed   the 

"State  V.  Grimes,  Nev.  ;  84  Pac,  Rep.  1061;  5  L.  R.  A.  (n. 
s.)   545   (1906). 


136  FEES  OF  OFFICER. 

fees  which  should  be  paid  to  the  clerk  for  such  copies  and 
for  making  searches  in  rey:ard  to  "any  matter  above  a  year's 
standing  *  *  *  jf  found."  An  abstract  company  sought 
by  injunction  to  restrain  a  clerk  from  interfering  with  it  in 
the  making  of  searches  and  examinations,  claiming  the  legal 
right  to  make  such  searches  and  abstracts  without  the  services 
of  the  clerk  and  without  the  payment  to  him  of  any  fees. 
The  court,  however,  held  that  though  the  company  was  en- 
titled to  copies  of  the  records  and  to  the  information  which  they 
contained,  yet  such  copies  and  information  must  be  obtained 
through  the  clerk  and  only  upon  the  payment  of  the  fees 
prescribed  by  law.  In  rendering  its  decision  the  court  said: 
"WHiile  our  code  provides  that  everyone  shall  be  entitled  to 
copies  of  the  records  and  to  the  right  of  such  information  as 
they  may  afford,  yet  it  provides  that  such  copies  and  searches 
shall  be  made  by  the  clerk  himself  and  on  the  payment  of  sueli 
fees  as  the  law  prescribes.  *  *  *  The  appellee  has  the  right 
under  its  charter  to  require  the  clerk  to  furnish  to  it  transcripts 
of  title  and  other  matters  of  record,  and  the  right  to  make 
searches;  but  the  construction  (contention)  is  that  the  appellee 
has  the  right,  through  its  officers  and  employees  themselves,  to 
make  searches  and  abstracts  of  title  and  to  do  this  without 
paying  the  fees  prescribed  by  law.  There  is  nothing  in  the 
code  or  charter  of  the  appellee  to  support  this  contention."^- 
§  131.     In  the  absence  of  a  statute  on  the  subject,  an  ab- 

12  Belt  V.  Abstract  Company,  73  unless  it  agreed  to  pay  him  the  fees 
Md.  289;  20  Atl.  Rep.  982;  10  L.  lie  considered  he  was  entitled  to 
R.  A.  212;  30  Am.  Law  Reg.  (n.  under  the  constitution  and  laws  of 
6.)  oG  (1890).  From  the  state-  the  state."  The  opinion  is  taken 
nient  of  facts  set  out  in  the  re-  up  with  a  discussion  of  the  dan- 
port  of  this  case,  it  is  impossible  gers  and  inconveniences  likely  to 
to  tell  whether  the  abstract  com-  arise  from  permitting  the  public  to 
pany  desired  to  inspect  the  records  search  the  records  and  with  a  point- 
generally,  or  whether  it  had  been  less  reference  to  several  cases.  Two 
employed  by  interested  persons  to  of  these,  Lum  v.  McCarty,  supra, 
make  abstracts  of  title  to  certain  and  Rrewer  v.  Watson,  71  Ala.  299, 
lands.  It  is  merely  said  that  the  might  have  been  reviewed  witii 
company  "organized  and  undertook  profit,  and  the  principles  of  these 
to  begin  business  by  offering  to  cases  might  have  been  applied  to 
search  the  records,  papers,  etc.,  in  or  distinguished  from  the  case  at 
the  office  of  appellant,  but  was  bar.  The  exact  point  of  the  de- 
prevented    by    him    from    so    doing  cision    is    not    clear,    but    it    would 


STATUTORY  FEES.  137 

stracter  as  the  agent  of  one  interested  may  search  the  records 
to  discover  the  existence  or  non-existence  of  anything  on  the 
records  which  may  affect  the  title  which  he  is  examining  for 
his  principal,  but  where  there  is  a  statute  covering  the  right 
to  make  search  and  certify  to  the  existence  or  non-existence  of 
matters  of  record  in  a  county  office,  it  will  control  the  extent 
to  which  such  records  may  be  used  by  an  abstracter  as  such 
agent.  The  statutes  of  Minnesota  provide  that  the  books  in 
the  clerk's  oiffce  shall  be  open  "to  the  inspection  of  any  person 
demanding  the  same,  free  of  charge,  except  in  those  cases  where 
fees  are  provided  by  law."  One  section  of  the  act  provides 
that  "whenever  information  as  to  the  contents  of  any  of  said 
books  respecting  the  existence  or  docketing  or  satisfaction  of 
judgment  is  required  for  the  purpose  of  making  or  certifying 
abstracts  of  title,  any  person  requiring  such  information  shall 
apply  to  the  clerk  therefor,  and  said  clerk  shall  at  once  make 
search  and  certify  the  result,"  etc.  Another  section  of  the 
act  provides  for  fees  to  the  clerk  for  such  services.  In  con- 
struing these  provisions  the  court  held  that  the  clerk  alone 
had  the  right  to  certify  abstracts  of  title  as  to  judgments,  and 
that  an  abstracter  of  titles  had  no  right  to  make  searches  of 
the  books  in  the  clerk's  office  for  the  purpose  of  making  such 
certificates,  and  in  the  course  of  the  opinion  said:  "It  is  a 
conceded  fact  that  the  examination  sought  to  be  made  by 
relator  was  for  the  express  purpose  of  completing  and  certifying 
to  the  existence  or  non-existence  of  judgments  affecting  the  title 
to  land  abstracted,  and  was  clearly  for  a  purpose  not  authorized 
or  provided  for  by  the  statutes.  The  relator  has  the  undoubted 
right  under  the  statutes  to  examine  and  inspect  the  clerk's 
records  for  a  proper  purpose,  but  no  right  to  do  so  for  the 
purpose  of  certifying  to  abstracts  of  title."" 

seem  to  hold  that  under  the  pro-  all  papers,  and  to  take  memoranda 

visions   of  the  code,   one   interested  therefrom   for  any   lawful   purpose, 

in    the    records    is    not    entitled    to  without   the   payment   of   fees,   and 

examine  them  without  the  payment  also  to  examine  all  the  records  and 

of    fees    to   the    officer.       Maryland  indices  free  of  charge,  and  that  all 

statutes,    chap.     26,    art.     9,    acts  custodians  of  records  are  bound  to 

inOO,  provide  that  all  attorneys  and  afford    full    opportunity    to    make 

their  authorized  clerks  or  represent-  searches    and    the    memoranda    for 

atives   shall   be   entitled   to   inspect  the  purpose  aforesaid, 
and   examine   as    soon   as    filed    for  is  State   v.    IMcCubrey,    84    Minn, 

record   or   at   any   time   afterward,  439;   87  N.  W.  Rep.   1126    (1901). 


138  FEES  OF   OFFICER. 

§  132.  Statute,  free  access,  no  fees.  Where  the  right  of  free 
access  to  the  records  is  given  by  statute,  mandamus  will  lie 
to  compel  the  officer  to  permit  any  person  to  inspect  and  take 
copies  of  them,  even  though  the  officer  is  allowed  no  compensa- 
tion for  the  time  spent  in  watching  the  examiner.^*  In  one 
ease,  in  discussing  the  right  of  the  clerk  to  fees,  it  was  said: 
"But  the  contention  is  that  the  office  of  clerk  is  not  a  salaried 
office;  that  he  is  paid  by  fees;  that  the  fees  for  searches  and 
certificates  thereof  have  amounted  to  a  very  considerable  sum, 
and  in  this  office  have  resulted  in  a  surplus  above  the  maximum 
of  compensation  allowed  by  law  to  the  clerk,  which  has  gone 
into  the  treasury  of  the  United  States,  whereas,  if  this  plaintiff 
and  other  like  companies  situated  in  Philadelphia,  which  are 
monopolizing  the  business  of  examinations  of  title,  should  be 
permitted  to  make  their  own  inspection  and  examination  of 
these  indices,  a  large  part  of  the  fees  hitherto  received  by  the 
clerk  will  be  lost,  his  maximum  of  compensation  will  not  be 
reached,  and  there  will  be  no  surplus  to  be  paid  into  the 
Treasury  of  the  United  States.  It  is  insisted  that  although, 
by  the  terms  of  §  828,  ^^  the  judgment  records  are  open  to  the 
inspection  of  any  person  without  any  fee  or  charge  therefor, 
congress,  in  directing  the  preparation  of  the  indices  and  cross 
indices,  and  that  they  should  be  open  to  the  inspection  and 
examination  of  the  public,  did  not  add  thereto  'without  any 
fee  or  charge  therefor,'  and  thus  manifested  its  intent  that 
they  should  not  be  so  used  as  to  interfere  with  the  fees  there- 
tofore received  by  the  clerk.  We  cannot  so  interpret  the  statute. 
If  these  indices  were  intended  merely  for  the  convenience  of 
the  clerk  and    to  facilitate  his  work,  the  making  of  them  would 

In  State  v.  Scow,  93  Minn.  11;  lOO  taxes  are  issued  by  the  officers   in 

N.  W.  Rep.  382   (1904),  it  was  said  charge  of  the   respective  records, 

of     State     V.     McCubrey,     supra:  i4  Burton  v.  Tuite,  78  Mich.  363 ; 

"That   issue   involved   the   right   of  44  N.  W.  Rep.  282;  7  L.  R.  A.  73 

an   abstracter  to  inspect  the   books  (1889).     People  v.   Reilly,   38  Hun 

of  the  clerks  of  court  witliout   the  429   (1886).     Hanson  v.  Eichstaedt, 

payment  of  fees."     In  Minnesota  it  69    Wis.    538;    35    N.    W.    Rep.    30 

is    the    custom    to    order    abstracts  (1887).    State  v.  McMillan,  49  Fla. 

of  ronveyances  from  abstracters  of  243;  38  So.  Rep.  666  (1905).    Clay 

title,    who  have  free  access  to  the  v.   Ballard,   87   Va.   787;    13    S.   E. 

office   of   the   register   of   deeds   un-  Rep.  262    (1891). 

der   the   statutes   of   the   state,   but  lo  U.  S.  Conip.  Stat.  1901,  p.  635, 
certificates    as    to    judgments    and 


TRACT  INDICES.  139 

undoubtedly  have  been  left  to  his  discretion.  The  convenience 
of  the  public  and  assistance  to  those  interested  in  the  judgments 
were  obviously  in  the  thought  of  congress,  for  it  declared  that 
they  should  be  open  to  the  inspection  and  examination  of  the 
public."" 

§  133.  Under  some  statutes  abstracter  making  index  must  pay 
fees.  The  statutes  of  the  different  states,  giving  the  right  of 
public  inspection  of  the  records,  are  not  expressed  in  the  same 
language.  Each  statute  must  be  studied,  in  order  to  determine 
whether  under  it  an  abstracter  may  make  an  index  to  the  records 
without  the  payment  of  fees  to  the  officer.  In  one  case  the 
act  respecting  conveyances  provided  for  recording  them  in 
books  "to  which  books  every  person  shall  have  access  at  proper 
seasons,  and  be  entitled  to  transcripts  from  the  same  on  paying 
the  fees  allowed  by  law."  The  complainant  claimed  the  right 
of  access,  without  the  payment  of  fees,  for  the  purpose  of 
making  a  set  of  tract  indices,  and  for  the  purpose  of  carrying 
on  his  business  from  day  to  day  by  inspecting  and  indexing 
the  instruments  as  they  were  filed  for  record  in  the  office.  It 
was  held  that  under  this  act  every  person  had  a  right  of 
access  to  the  records,  without  the  payment  of  fees  to  the  officer, 
to  examine  any  title  in  which  he  was  interested,  subject  to 
reasonable  rules  and  regulations,  but  that  an  abstract  company 
had  no  right  to  such  free  examination  of  all  the  records  as  would 
deprive  the  officer  of  the  emoluments  of  his  office.  The  court 
said:  "The  law  makes  it  the  duty  of  the  clerk  to  take  care 
of  the  public  records  in  his  office,  but  gives  him  no  special  fees 
for  such  service.  The  only  compensation  to  him  are  the  fees 
he  receives  in  the  ordinary  course  of  his  business  for  searches. 
To  extend  the  right  of  search  by  others  beyond  this  limit  will 
deprive  the  clerk  of  the  only  remuneration  he  can  have  for 
the  performance  of  this  duty.  In  the  absence  of  clear  expres- 
sion, it  should  not  be  enlarged   by  construction. ""     In   this 

18 Bell    V.    Title    Co.,    189    U.    S.  "Barber  v.   Title  Co.,   53   N.  J. 

131;  23  Sup.  Ct.  Rep.  569    (1900).  Eq.   158;  32  Atl.  Rep.  222    (1895); 

See  Commonwealth  Title  Co.  v.  Bell,  reversing  West  Jersey  Title  Co.  v. 

87    Fed.    Rep.    19;    105    Fed.    Rep.  Barber,  49  N.  J.  Eq.  474;   24  Atl. 

548;  110  Fed.  Rep.  829.  Rep.  381   (1892). 


140  FEES  OF  OFFICER. 

case  and  in  a  subsequent  one/^  the  decision  in  Lum  v.  McCarty, 
supra,  was  approved  under  the  facts  governing  it,  but  it  was 
commented  on  as  going  to  the  limit.  In  these  cases  attention 
was  called  to  the  fact  that  in  Lum  v.  IMcCarty  the  attorney 
represented  one  interested  in  the  records  and  that  he  demanded 
inspection  of  the  records  in  which  his  client  was  interested, 
and  they  held  that  the  language  of  the  statute  did  not  extend 
to  persons  who  were  not  immediately  interested  in  the  records 
the  right  to  examine  them  without  the  payment  of  the  fees 
allowed  by  law. 

§  134.  A  statute  provided  that  all  books  kept  by  any  public 
officer  should  be  subject  to  the  inspection  of  all  citizens  of 
the  state  within  office  hours,  and  that  "for  each  inspection, 
when  the  clerk's  aid  is  required,"  a  fee  of  twenty-five  cents 
should  be  paid.  An  abstract  maker  insisted  that  he  had  a 
right  under  these  provisions  to  make  a  set  of  tract  indices  from 
the  records,  and  that  as  he  was  able  to  make  the  inspection  and 
compilation  without  the  assistance  of  the  clerk,  he  was  entitled 
to  do  so  without  the  payment  of  fees  to  the  officer.  The  court 
in  considering  this  contention  said:  "The  claim  of  the  com- 
plainant to  inspect  and  make  abstracts  of  the  clerk's  books 
W'ithout  the  payment  of  fees,  as  he  proposes  to  do,  is  not  fairly 
within  that  part  of  the  fee-bill  which  by  implication  permits 
any  citizen  to  make  an  inspection  without  fee  if  he  does  not 
require  the  clerk's  aid.  All  laws  are  to  be  reasonably  construed 
in  view  of  the  object  of  them  and  in  view  of  other  laws.  The 
object  of  this  permission  to  inspect  without  fee  if  no  aid  is 
required  from  the  clerk,  is  plain.  It  is  contemplated  that 
lawyers,  public  officers  and  persons  familiar  with  the  books 
by  having  frequent  occasion  to  use  them  may  not  need  the 
clerk's  assistance  for  the  purpose.  And  by  implication  this 
permission  contemplates  that  the  clerk  shall  in  such  cases  make 
no  charge  for  simply  standing  by  and  noticing  that  no  improper 
interference  with  the  record  is  had.  *  *  *=  But  the  law 
never  contemplated  that  anyone  would  make  a  business  of  it; 
spend  days  and  weeks  in  the  office,  engaged  in  an  occupation 
which  in  our  judgment  cannot  lawfully  be  carried  on  except 
under  the  immediate  observation  of  the  clerk.     Fees  are  given 

18  Fidelity  Trust  Co.  v.  Clerk,  65      N.    J.    L.    495;    47    Atl.    Rep.    451 
(1900). 


TRACT  INDICES.  141 

for  each  inspection,  each  abstract.  The  law  has  in  view  the 
inspection  of  one  chain  of  title — the  status  of  one  man — and 
fixes  a  fee  for  that.  If  the  inspection  of  the  book  does  not 
require  the  aid  of  the  clerk,  he  can  demand  no  fee,  but  it  is 
still  his  duty  to  inspect  the  inspector.  In  our  judgment  the 
rights  claimed  by  the  complainant  thus  to  occupy  the  attention 
of  a  public  officer,  perhaps  for  weeks  together,  without  fee  or 
reward,  is  a  perversion  of  the  letter  of  the  law  intended  for 
one  purpose,  to  another  and  different  purpose  not  contemplated 
by  the  lawmakers,  and  contrary  to  their  intent.  It  stands 
exactly  on  the  footing  of  the  misconstruction  mentioned  by 
Blackstone,  when  it  was  concluded  that  because  it  was  unlawful 
to  draw  blood  in  the  streets,  a  surgeon  was  a  lawbreaker  who 
bled  a  man  found  helpless  therein.  If  some  one  familiar  with 
the  clerk's  office,  say  an  old  clerk  or  a  lawyer,  whose  business 
required  him  often  to  examine  the  books,  were  to  make  a  business 
of  it,  and  sitting  at  the  clerk's  door  solicit  every  inquirer  to 
give  him  a  job,  he  would  be  no  more  a  perverter  of  the  law 
and  infringer  on  the  rights  of  the  clerk  than  this  complainant 
proposes  to  be. ' '  ^*  The  opinion  on  one  branch  of  this  case, 
Buck  V.  Collins,  has  already  been  commented  on.-"  The  language 
of  the  statute  under  consideration  was:  "For  each  inspection, 
when  the  clerk's  aid  is  required,  twenty-five  cents."  The  court 
construed  it  without  giving  any  force  to  the  words  "when  the 
clerk's  aid  is  required"  and  as  if  it  read  "for  each  inspection 
a  fee  of  twenty-five  cents  shall  be  paid."  The  words  "when 
the  clerk's  aid  is  required"  would  seem  to  mean  when  it  is  re- 
quired by  the  searcher.  Watching  the  records  while  under 
examination  by  the  searcher  can  scarcely  be  called  aiding  in 
the  inspection  of  them. 

§  135.  Under  some  statutes  abstracter  may  make  index  with- 
out payment  of  fees.  Under  some  statutes,  where  the  inspection 
and  taking  of  memoranda  for  a  tract  index  is  done  by  the  ab- 
stracter, his  agents  and  assistants,  without  any  service  from 
the  custodian  of  the  records  in  connection  therewith,  except 
that  general  supervision  and  watchfulness  which  is  necessary 
to  the  protection  and  safekeeping  of  the  records,  the  custodian 

19  Buck   V.    Collins,   51    Ga.   391;       ner,    99    Ga.    470;    27    S.    E.    Rep. 
21   Am.  Rep.  236,  decided  in   1874,       727    (1896). 
affirmed  in  Land  Title  Co.  v.  Tur-  20  See  §  104. 


142  FEES  OF   OFFICER. 

is  not  entitled  to  any  fees  or  compensation.  A  statute  of 
Florida  provided,  "Such  records  shall  be  always  open  to  the 
public  under  the  supervision  of  the  clerk  for  the  purpose  of 
inspection  thereof  and  of  making  extracts  therefrom ;  but  the 
clerk  shall  not  be  required  to  perform  any  service  in  connection 
with  such  inspection  or  making  of  extracts  without  payment 
of  the  compensation  fixed  by  law."  In  passing  on  the  right 
of  the  clerk  to  fees  under  the  statute  the  court  said:  "It  is 
contended  again  that  the  respondent  clerk  has  the  right  to  ex- 
clude the  relators  and  their  assistants  from  examination  of  the 
records  and  from  making  extracts  therefrom  unless  such  re- 
lators shall  pay  him  a  large  amount  as  his  fees  and  remuneration 
for  such  inspection  and  extracting.  We  think  that  the  tqrms 
of  our  statute  clearly  forbid  the  assertion  of  any  such  claim  or 
demand.  The  alternative  writ  of  the  relators  alleges  that  the 
relators  and  their  assistants  have  perfect  knowledge  of  the 
location  in  the  respondent's  office  of  all  of  the  records  sought 
to  be  examined  by  them,  and  that  they  can  and  desire  to  do 
all  of  the  work  of  inspecting  and  abstracting  such  records  them- 
selves without  any  assistance  whatsoever  from  the  respondent 
clerk  or  his  deputies ;  that  they  do  not  need  any  such  assistance 
from  the  respondent  and  do  not  ask  or  desire  it.  Our  statute 
already  quoted  in  express  terms  provides  for  just  such  a  case 
•when  it  says  that  "the  clerk  shall  not  be  required  to  perform 
any  service  in  connection  with  such  inspection  or  making  of 
extracts  without  payment  of  the  compensation  fixed  by  law." 
This  is  tantamount  to  saying  that  when  he  is  not  required  to 
perform  any  service  in  connection  with  such  inspection  and 
extracting,  then  he  is  not  entitled  to  any  compensation;  and 
nowhere  in  our  statutes  is  there  any  fee  or  compensation  fixed 
or  prescribed  for  the  clerk  for  the  bare  supervision  in  his 
office  of  parties  who  may  go  there  themselves  to  inspect  and 
take  extracts  from  the  records  without  calling  upon  him  for 
any  service  or  assistance  in  connection  therewith,  other  than 
that  bare  general  supervision,  observation  or  watchfulness  on 
his  part  that  it  is  his  duty  at  all  times  and  under  all  circum- 
stances to  exercise  in  his  office  to  insure  the  safekeeping  of 
such  records.  Such  constant  supervision,  observation  and  watch- 
fulness over  the  records  is  one  of  the  prime  duties  that  he 
assumes  when  he  takes  the  office,  and  the  law  fixes  no  fee  or 


TRACT  INDICES.  143 

compensation  therefor.  Our  conclusion  is  that  under  the  terms 
and  provisions  of  our  statute  the  public  generally,  including 
any  person  or  firm  who  may  be  engaged  in  the  enterprise  of 
compiling  a  complete  set  of  abstract  books  of  the  titles  to  all  the 
real  estate  in  a  county,  have  the  continuous  right  at  all  reasona- 
ble hours  and  times  by  themselves  or  their  agents  to  inspect  and 
make  extracts  from  any  and  all  of  the  public  records  in  the 
offices  of  clerks  of  the  circuit  courts;  and  that  where  such 
inspection  and  extracting  is  done  by  the  parties  themselves 
or  by  their  agents  or  assistants,  without  any  service  or  assistance 
from  the  clerk  or  his  deputies  in  connection  therevv'ith  other  than 
that  general  supervision  and  watchfulness  as  to  what  is  going 
forward  in  his  office  that  is  necessary  to  the  safekeeping  of 
such  records,  then  such  clerk  is  not  entitled  to  any  fees  or 
compensation."  ^^ 

§  136.  An  act  of  congress,  August  12,  1848,  provides  that  all 
books  in  the  offices  of  the  clerks  of  the  circuit  and  district 
courts  of  the  United  States,  containing  the  dockets  of  the  judg- 
ments or  decrees  of  such  courts,  shall  during  office  hours  be 
open  to  the  inspection  of  any  person  desiring  to  examine  the 
same,  without  any  fee  or  charge  therefor.  The  act  of  February 
26,  1853,  allows  the  clerk  a  certain  fee  for  searching  the  records 
for  judgments  or  decrees.  The  act  of  August  1,  1888,  provides 
that  the  indices  and  records  of  judgments  which  the  clerk  by 
that  act  is  required  to  keep  shall  be  open  at  all  times  to  the 
inspection  and  examination  of  the  public.  In  construing  these 
acts  it  was  held  that  these  provisions  secure  to  the  public  the 
right  to  examine  these  records  free  of  charge,  and  that  the 
clerk  is  entitled  to  a  fee  only  when  he  is  required  to  make 
the  search  himself.  The  court  said:  "The  language  of  these 
statutes  is  peremptory  and  authoritative.  Their  plain  meaning 
and  legal  effect  are  in  no  manner  limited,  restricted  or  affected 
by  the  provisions  relating  to  the  fees  of  the  clerk  for  searches. 
If  the  citizen  requires  the  clerk  to  make  the  search,  instead  of 
making  it  himself,  the  clerk  is  then  entitled  for  his  services 
to  the  fees  fixed  by  the  statute.  He  is  only  entitled  to  fees 
when  he  earns  them.     He  cannot  charge  the  citizen   fees  for 

21  state  V.  McMillan,  49  Fla.  243 ;       N.    W.    Rep.   282 ;    7    L.    R.   A.    73 
38  So.   Rep.  666    (1905).      See  also        (1889). 
Burton  v.  Tuite,  78  Mich.  363;  44 


144  FEES  OF  OFFICER, 

the  privilege  of  tloing  for  himself  what  the  statute  in  terms 
says  he  may  do  'without  any  fee  or  charge  therefor.'  *  *  * 
The  theory  of  the  bill  and  the  decree  is  that  the  government 
fixed  the  clerk's  fee  for  searches  at  15  cents  for  each  name 
as  a  means  of  revenue  to  aid  in  the  support  of  the  government, 
and  that  it  is  therefore  entitled  to  a  monopoly  of  the  business, 
and  that  persons  who  lawfully  obtain  copies  of  the  judgment 
records  and  the  indexes  to  the  same  cannot  use  them  in  their 
business  of  abstracting  and  certifying  to  titles,  but  that  every 
citizen  of  the  state  who  desires  any  information  with  reference 
to  judgments  in  a  United  States  court  must  apply  directly  to 
the  clerk  of  that  court,  and  pay  him  for  searching  for  the 
same.  All  monopolies  are  odious,  and  English  history  does 
not  furnish  an  example  of  one  more  odious  in  principle  and 
vexatious  in  practice  than  that  sought  to  be  established  by  the 
bill  in  that  case.  Congress  never  contemplated  the  establish- 
ment of  any  such  monopoly  in  this  business,  either  for  the 
benefit  of  the  government  or  the  clerk.  The  acts  of  1848  and 
1888  are  anti-monopoly  acts,  and  took  away  from  the  govern- 
ment and  the  clerk  all  possible  claim  to  the  exclusive  privilege 
of  searching  these  records,  and  selling  the  information  they 
contain.  The  monopoly  of  authority  in  business  affairs  is 
in  every  instance  and  in  every  degree  an  evil  which  can  only 
be  established  by  clear  and  positive  legislation.  It  will  never 
be  presumed  nor  inferred  from  a  statute  capable  of  any  other 
construction.  The  decisions  on  the  right  of  the  citizen  and 
abstract  companies  to  inspect  and  copy  the  records  of  the 
state  courts,  under  the  varying  statutes  of  the  states,  are  some- 
what conflicting,  but  it  is  believed  that  there  would  have  been 
no  division  of  opinion  on  the  subject  if  the  state  statutes  had 
been  as  comprehensive  and  mandatory  in  their  terms  as  the 
statutes  of  the  United  States."  ^- 

22  In  re  Chambers,  44   Fed.   786     (1891). 


CHAPTER  XIII. 

TRACT    INDICES. 

§  137.  Generally  concerning  tract  indices.  In  eonstrncting  a 
set  of  tract  indices  books  are  specially  prepared.  A  caption 
is  ruled  at  the  top  of  each  page  for  the  description  of  the  prop- 
erty. There  should  be  about  sixty  lines  to  a  page,  and  the 
page  should  be  ruled  off  into  columns.  In  these  columns  is 
written  across  the  page  on  one  of  the  lines  the  document  number, 
grantor,  grantee,  date,  date  of  record  and  a  short  description 
of  the  land  in  each  instrument  of  record  affecting  the  title  to 
the  land  described  in  the  caption.  In  some  indices  there  are 
columns  for  the  consideration  and  the  book  and  page  of  the 
records  in  which  the  instrument  is  recorded.  In  others  there 
are  separate  books  for  the  document  number  and  the  book 
and  page  of  the  records.  On  the  proper  page  there  is  noted 
the  number  of  any  case  in  court  affecting  the  title  to  the  prop- 
erty described  in  the  caption,  together  with  the  title  of  the 
suit,  the  number  of  any  case  in  the  probate  court,  in  which 
the  property  is  inventoried,  and  any  mechanic's  lien  claim  filed 
against  the  property.  Certain  of  the  books  are  devoted  to  the 
sections  in  a  particular  township  and  range  in  the  county. 
Where  any  part  of  the  section  has  been  subdivided  into  lots 
and  blocks,  the  subdivision  is  laid  out,  say  four  lots  to  a  page, 
and  everything,  as  above,  relating  to  these  lots,  is  posted  on 
the  page.  Certain  pages  are  devoted  to  the  origin  of  the  titles 
to  the  subdivided  pieces  of  land,  and  any  deed  describing  the 
property  as  acre  property,  or  describing  all  interest  in  the 
subdivision,  or  describing  inaccurately  land  covered  by  the 
subdivision,  is  posted  under  this  "origin."  All  conveyances 
which  seem  to  describe  subdivided  property  in  such  a  manner 
that  it  is  difficult  to  tell  v/hat  lots  and  blocks  are  affected  by 
it  are  placed  in  the  "origin."  There  is  also  a  tract  book  called 
the  "range,"  in  which  are  placed  conveyances  which  do  not 
properly  describe  or  locate  the  property.  There  is  also  a  book 
of  "irregulars,"  in  which  are  posted  alphabetically  all  affidavits 
1°  145 


146  TRACT  INDICES. 

as  to  dower,  heirship  or  kindred  matters,  where  no  property 
is  described.  If  A  conveys  to  B  "all  his  real  estate"  in  the 
county,  not  describing  it,  it  will  be  posted  in  the  "irregulars," 
Since  judgments,  taxes  and  special  assessments  are  of  a  tran- 
sitory nature,  special  tract  indices  are  kept  for  each  of  these 
liens,  and  are  constructed  from  time  to  time  as  they  are  re- 
quired. While  the  rudiments  of  a  system  of  tract  indices  are 
simple,  yet,  by  reason  of  the  errors  of  conveyancers  and  the 
variety  and  peculiarities  of  instruments  put  on  record,  it  is  so 
complicated  and  involved  that  one  must  be  specially  trained 
to  construct  or  even  to  use  it.  If  the  guide  and  key  to  the 
records  is  necessarily  so  difficult  to  use,  how  is  it  possible  to 
search  the  records  without  one? 

There  are  to-day  in  the  older  states  few  counties  in  which 
an  abstract  of  title  can  be  made  with  reasonable  convenience, 
security  and  dispatch  from  the  indices  of  grantors  and  grantees 
in  the  recorder's  office,  and  from  the  general  indices  in  the  other 
county  offices.  This  statement  is  substantially  proved  by  the 
fact  that  in  all  counties  of  twenty  or  thirty  thousand  inhabitants, 
and  in  many  having  a  smaller  population,  there  is  at  least  one 
set  of  tract  indices  to  the  records.  In  some  states  the  law 
provides  that  such  indices  may  be  made  by  the  recorder  and 
kept  in  his  office  for  the  benefit  of  the  public,  but  as  they  are 
expensive  to  make  and  maintain,  and  require  skill  and  technical 
knowledge,  there  are  few  public  tract  indices  in  existence. 
The  compiling  of  tract  indices  has  usually  been  a  matter  of 
private  enterprise.^  In  one  case  it  was  said  that  in  the  abstract 
business  "it  is  necessary  to  make  what  are  called  tract  indices 
■which  will  show,  under  the  designation  of  each  tract  or  lot 
of  land,  all  conveyances  or  liens  affecting  the  same.  *  *  * 
It  is  essential  to  the  convenient  and  proper  transaction  of  the 
■business  that  those  engaged  in  it  provide  themselves  with  these 
Iract  indices.  This  can  only  be  done  by  examination  of  the 
records  in  the  register's  office  and  making  copies  or  abstracts 
•of  the  same."-  They  are  great  savers  of  time  and  money 
to  the  public  generally,  and  are  highly  useful  in  many  ways 
in  dealing  with  real  estate.^     The  new  method  of  search   by 

1  §  90.  3  state  v.  Mc:\Iillan,  49  Fla.  243; 

2  State  V.  "Rachac,  37  Minn.  372;       38  So.   Rep.  OGG    (1905). 
35  J«.  W.  Rep.  7    (1887). 


TRACT  INDEX  A  NECESSITY.  147 

means  of  tract  indices  is  more  convenient  and  more  in  accord- 
ance with  the  enlightenment  and  enterprise  of  the  times  than 
the  old  method.* 

§  138.  A  tract  index  is  a  necessity.  In  a  large  city  from 
two  hundred  to  four  hundred  instruments  are  placed  on  record 
on  each  business  day,  and  when  speculation  in  real  estate  is 
active,  a  greater  number  may  be  placed  on  record  every  day  for 
months  at  a  time.  It  is  manifestly  impossible  to  make  progress 
in  examining  such  records  by  means  of  the  general  indices  of 
grantors  and  grantees.^  In  addition  to  the  general  difficulties 
in  examining  such  indices  there  are  many  special  difficulties. 
For  instance,  if  a  deed  to  a  woman  is  recorded,  her  name  will 
appear  on  the  index  as  the  grantee ;  if  she  afterward  marries 
and  a  conveyance  from  her  is  recorded,  her  new  name  will  ap- 
pear on  the  index  of  grantors,  and  the  examiner  of  the  index, 
who  does  not  know  her  new  name,  will  be  unable  to  follow  the 
chain  of  title.  And  again,  when  a  deed  to  two  or  more  persons 
is  recorded,  the  name  of  the  first  grantee  only  will  appear  on 
the  index;  if,  when  they  convey,  his  name  should  not  come  first 
in  the  deed,  the  record  of  the  deed  will  show  on  the  index  only 
the  name  of  the  first  grantor,  which  may  begin  with  a  different 
letter  of  the  alphabet.  Deeds  assuming  to  convey  an  interest 
adverse  to  the  main  chain  of  title  will  scarcely  be  found  except 
by  accident.  It  has  been  held  that  where  an  abstracter  finds  of 
record  a  good  conveyance  to  a  person,  he  is  not  required  to  ex- 
amine prior  to  the  period  at  which  the  legal  title  vested  in  the 
grantee,  in  order  to  discover  whether  before  acquiring  title  he 
had  made  a  conveyance  with  covenants  of  warranty  to  any  per- 
son, or  had  made  a  mortgage  on  the  property.®  A  tract  in- 
dex takes  notice  of  the  filing  of  every  instrument  affecting  the 

*  See  Smith  v.  Lamping,  27  Wash.  transcribed.     68,000  estate  had  been 

624;   68  Pac.  Rep.   195    (1902).  probated  in  the  probate  court,  and 

s  All    public    records    in    Chicago  42,000  special  assessments  had  been 

were  burned  in  the  great  fire,  Octo-  levied.     268,000      suits      had     been 

ber  9,   1871.     The  new  records  be-  filed    in    the    superior    court,    and 

gin    from    that    date.     On    May    1,  287,000  suits  had  been  filed  in  the 

1908,  there  were  in  the  recorder's  circuit     court.      Municipal     courts 

office    in   that   city    196    indices    of  have  recently  been  established  and, 

grantors   and   grantees,   and    10,500  in    some    of    these,    judgments    are 

record    books    in    which    more    than  liens  on  land. 
4,250,000     instruments     had     been  6  State  v.  Bradish,  14  Mass.  296 


148  TRACT  INDICES. 

title  to  the  land  in  the  caption,  and  will  show  any  such  prior 
conveyance  or  mortgage  at  a  glance.  Many  illustrations  might 
be  added.  The  method  of  preparing  abstracts  of  title  from  the 
indices  of  grantors  and  grantees  is  primitive  and  slow  even  in 
small  communities,  but  in  large  communities  it  is  impossible. 
"We  have  so  far  considered  only  the  records  in  the  recorder's 
office.  In  order  to  make  abstracts  of  title  we  must  find  out  the 
court  proceedings  which  affect  the  title  under  consideration. 
Unless  they  are  referred  to  in  a  tract  index  in  which  a  minute 
of  them  was  posted  as  they  were  brought,  they  may  never  be 
found.  As  for  judgments,  in  populous  communities  they  may 
be  found  only  with  the  aid  of  an  alphabetical  judgment  index. 
Enough  has  been  said  and  suggested  to  show  that  the  design 
and  object  of  the  county  offices  cannot  be  carried  out  in  these 
days  by  the  old  and  primitive  methods  of  search.  The  pos- 
sibility of  complete  and  reasonably  rapid  search  is  indispen- 
sable to  effect  the  design  of  those  offices  and  to  give  certainty 
and  security  to  the  community  in  dealing  with  titles  to  land. 
This  can  only  be  attained  by  means  of  a  tract  index.  Without 
it,  the  records  in  the  county  offices  are  a  mass  of  hidden  infor- 
mation, impossible  of  the  use  for  which,  in  the  days  of  small 
things,  they  were  intended.  If  you  ask  a  county  recorder  or 
register  of  deeds  concerning  the  ownership  of  a  certain  piece  of 
property,  he  will  not  be  able  to  tell  you  presently  anything 
about  it  from  the  records  in  his  custody,  but  if  you  ask  an  ab- 
stracter who  has  a  tract  index,  he  will  tell  you  in  a  few  mo- 
ments the  ownership  of  the  property  and  the  history  of  the 
title.  A  tract  index  is  a  guide  to  every  piece  of  information 
contained  in  the  records,  and  is  the  necessary  foundation  of  the 
business  of  making  abstracts  of  title. 

§  139.  A  tract  index  saves  time  and  records.  To  make  a  set 
of  tract  indices  a  number  of  persons  must  work  for  some  time 
in  the  county  offices.  While  this  force  is  at  work  examining 
and  posting  the  records  systematically,  one  after  another  ac- 
cording to  their  numbers  and  dates,  there  is  necessarily  much 
handling  of  the  books  and  papers.  But  after  the  indices  are 
complete,  they  enable  the  abstracter  to  find  at  once  the  book  and 

(1817).     McCusker  v.  McEvoy,   10       Rawlc  on  Covenants  of  Title    (5th 
R.    I.   610    (1874).      Dodd   v.    Wil-       Ed.),  §259.    Sec  §  6  et  seq. 
liams,    3    Mo.    App.    278     (1877). 


SAVE  TIME  AND  RECORDS.  149 

page  which  he  desires  to  inspect.  He  is  able  to  make  his  ex- 
amination in  a  short  time  and  with  little  handling  of  the  rec- 
ords. He  will  consume  a  minimum  of  the  time  of  the  officer  in 
charge  of  the  records.  The  demand  for  abstracts  of  title  is  not 
affected  by  anything  except  the  number  of  dealings  with  lands 
by  way  of  sale,  mortgage  or  court  proceeding.  Where  persons 
make  abstracts  without  the  help  of  a  tract  index,  they  will 
necessarily  find  the  copies  of  the  required  instruments  slowly 
from  the  general  indices,  and  will  take  much  more  of  the  time 
and  attention  of  the  custodian  and  his  assistants  in  preparing 
a  given  number  of  abstracts  of  title  than  an  abstracter  with  a 
tract  index  will  take  in  preparing  a  like  number.  Such  an  in- 
dex saves  the  time  of  the  buyer  and  the  seller  of  real  estate,  the 
mortgagor  and  the  mortgagee,  the  abstract  maker  and  the  officer 
in  charge  of  the  records.  It  drives  out  of  business  those  who 
make  abstracts  of  title  in  the  old  methods  of  search,  but  in  do- 
ing so  it  concentrates  the  work  in  the  hands  of  a  few  persons 
who  become  skilled  in  the  business  and  in  the  handling  of  the 
records.  The  use  of  an  index  tends  to  protect  and  preserve  the 
public  records. 

§  140.  Discovery,  production  of  tract  indices  in  court.  Cer- 
tain books  of  the  records  of  a  county, — records  of  deeds  and 
mortgages,  an  execution  docket,  a  homestead  record  book  and  a 
minute  book  of  the  superior  court, — were  lost,  stolen  or  de- 
stroyed. The  legislature  of  the  state  passed  an  act  for  the  es- 
tablishment of  copies  or  substantial  copies  of  these  books,  and 
provided  for  such  orders  and  proceedings  as  might  be  necessary 
for  such  purpose.  One  section  of  the  act  read  as  follows:  "It 
shall  be  lawful  for  said  court,  or  the  judge  thereof  in  vacation, 
in  all  cases  where  he  shall  deem  it  proper  and  necessary  so  to  do, 
to  appoint  an  auditor,  whose  duty  it  shall  be  to  hear  evidence, 
and  who  shall  have  power  to  summon  witnesses  and  compel  the 
production  of  books  and  papers  under  such  rules  and  regula- 
tions as  are  now  practised  in  courts  of  law  in  this  state,  and  he 
shall  make  his  report  to  the  court  of  such  copies  of  such  lost, 
stolen,  mutilated  or  destroyed  copies,  and  such  report  when 
filed  shall  be  acted  on  by  the  court  and  made  the  judgment,  un- 
less objection  be  filed  to  the  same  or  some  part  thereof  as  being 
incorrect,  which  objection,  if  any,  shall  be  heard  and  determined 
by  the  court  without  the  intervention  of  a  jury."     An  auditor 


150  TRACT  INDICES. 

■was  appointed  by  the  court,  who  reported  later  that  he  had  given 
public  notice  to  all  persons  having  any  deeds,  mortgages,  etc., 
recorded  in  the  books  mentioned,  to  file  them  with  him  for  the 
purpose  of  having  them  recorded  again,  but  that  few  instru- 
ments were  brought  to  him  in  response  to  the  notice.  After- 
ward a  subpoena  duces  tecum  was  issued  and  served  on  the  sec- 
retary of  a  title  company,  requiring  him  to  appear  and  testify, 
and  to  bring  with  him  all  the  abstract  books  of  the  corporation 
in  which  appeared  any  entries  relating  to  the  records  in  the  lost 
record  books  of  deeds  and  mortgages.  The  secretary  made  a 
formal  answer  setting  forth  the  reasons  why  he  declined  to 
bring  the  books  before  the  auditor.  These  reasons  were  sub- 
stantially approved  by  the  court  in  that  part  of  the  opinion 
which  is  presently  to  be  quoted.  The  court  held  that  a  title 
company  may  not  be  compelled  by  such  a  writ,  served  on  one  of 
its  officers,  to  make  discovery  of  the  contents  of  lost  public 
records,  where  the  pleadings  for  the  purpose  do  not  allege  or  set 
out  anything  whatever  as  the  specific  contents  to  be  proved.  As 
to  the  right  to  compel  the  company  to  produce  its  books  the 
court  said:  "These  abstract  books  called  for  by  the  subpoena 
came  into  existence  as  the  result  of  private  enterprise  and  labor, 
and  were  afterwards  purchased  by  this  private  corporation  at 
great  expense.  They  are  its  private  property  and  are  used  by 
it  in  the  conduct  of  its  corporate  business.  They  have  never 
been  published.  Their  contents  are  kept  secret,  except  as  dis- 
closed, piecemeal,  in  furnishing  to  applicants  therefor  abstracts 
of  title  relating  to  specified  parcels  of  real  estate ;  and  the  fur- 
nishing of  such  abstracts  is  carried  on  as  a  business  for  pay  and 
profit.  The  value  of  the  books  consists  mainly  in  the  secrecy 
of  their  contents.  Were  the  information  which  they  afford  ac- 
cessible to  the  public  by  other  means,  the  demand  for  it  through 
the  one  source  now  available  would  be  diminished,  if  not  de- 
stroyed. The  monopoly  enjoyed  by  a  closely  sealed  intelligence 
office  would  be  broken,  and  the  losses  inflicted  by  free  competition 
would  be  instantly  felt  in  the  exchequer  of  the  establishment. 
There  can  be  no  doubt  that  the  corporation  has  a  vital  interest 
in  maintaining  the  secrecy  of  these  books  as  a  repository  of 
valuable  information.  And  certainly  its  secretary  is  under  a 
duty,  both  legal  and  moral,  not  to  aid  in  killing  the  goose  that 
lays  the  golden  egg  if  he  can  help  it.     His  claim  of  privilege  is 


PUBLIC  INDICES.  151 

therefore  as  meritorious  as  if  his  own  personal  interests  were 
involved.  We  think  the  claim  protects  him  and  that  the  auditor 
ruled  correctly  in  so  holding."'^ 

§  141.  Right  of  county  connnissioners  to  establish  indices. 
"Where  the  legislature  of  a  state  describes  the  system  of  index- 
ing records  to  be  followed  by  certain  county  officers  through- 
out the  state,  it  is  not  permissible  for  the  county  commissioners 
of  a  county  to  expend  public  money  to  maintain  other  and  dif- 
ferent systems,  such  as  tract  indices.^ 

§  142.  Right  to  copy  compiled  work,  tract  indices,  etc.  What 
has  heretofore  been  said  in  this  treatise  concerning  the  right  of 
inspection  of  public  records  relates  to  such  records  as  are  in  the 
official  custody  of  a  public  officer  and  are  constructive  notice 
of  the  contents  of  them.  When  pursuant  to  authority  con- 
ferred on  it  by  statute,  a  county  undertakes  to  make  abstracts 
of  title  for  the  public  for  hire,  it  does  so  in  the  exercise  of  its 
private  and  not  of  its  governmental  functions.  While  by  stat- 
ute the  public  may  be  entitled  to  free  access  to  records  of  a  pub- 
lic nature,  such  as  are  constructive  notice  or  are  required  by 
law  to  be  kept  by  the  recorder,  yet,  in  the  absence  of  express 
statutory  permission,  a  member  of  the  public  may  not  copy, 
tract  indices  and  abstract  books  used  by  the  recorder  in  con- 
nection with  the  private  business  of  the  county  as  an  abstracter 
of  titles,  where  the  copying  of  such  indices  and  books  would  re- 
sult in  competition  with  the  county  in  the  business  of  making 
abstracts.  If  a  person  preparing  to  engage  in  the  business  of 
making  abstracts  of  title  may  avail  himself  of  the  compiled 
work  done  by  the  county  in  its  capacity  of  a  private  corpo- 
ration and  may  copy  it  into  his  own  books,  he  will  acquire  with- 
out compensation  a  valuable  property  which  has  cost  the  county. 
a  large  sum  of  money,  and  will  be  enabled  at  once  to  enter  into 
competition  with  the  county  in  serving  the  public.  Where  the 
statute  provided  that  "all  records,  indices,  abstract  and  other 
books"  should  be  open  to  the  inspection  and  examination  of 
the  public,  and  that  all  persons  should  "have  the  right  to  take 
memoranda  and   abstracts  thereof  without  fee  or  reward,"  it 

7  Ex  parte  Calhoun,  87  Ga.  359  Dirks  v.  Collin,  37  Wash.  620;  79 
(1891).  Pae.   Rep.    1112    (1905).      See   Peo- 

8  Smith  V.  Lamping,  27  Wash.  pie  v.  Nash,  62  N.  Y.  484  (1875). 
624;     68    Pae.    Rep.     195     (1902). 


152  TllACT  INDICES. 

was  held  that  even  if  the  statute  gave  all  persons  the  right  to 
"take  memoranda  and  abstracts"  from  the  tract  indices  and 
other  books  used  by  the  county  in  conducting  an  abstract  bus- 
iness, it  did  not  give  them  the  right  to  copy  such  indices  and 
books  into  other  books.  Such  indices  and  books  are  to  be  dis- 
tinguished from  the  books  necessaiily  and  usually  kept  by  the 
recorder  and,  strictly  speaking,  have  no  relation  to  the  duties 
of  a  recorder  as  a  public  officer.^ 

§  143,  Tract  indices  are  not  taxable.  A  set  of  tract  indices 
to  the  public  records  have  no  intrinsic  value  and  are  not  tax- 
able. In  so  determining  the  court  said: — "The  constitution 
reciuires  assessments  to  be  made  on  property  at  its  cash  value. 
This  means  not  only  what  may  be  put  to  valuable  uses  but  what 
has  a  recognizable  pecuniary  value  inherent  in  itself  and  not 
enhanced  or  diminished  according  to  the  person  who  owns  or 
uses  it.  The  court  below  found  expressly,  and  could  not  have 
found  otherwise,  that  these  abstract  books  have  no  intrinsic 
value.  They  are  only  valuable  for  the  information  they  con- 
tain, and  that  information  is  conveyed  by  consultation  or  ex- 
tracts. Their  value  is  only  kept  up  by  their  completeness  and 
continued  correcting.  The  sale  of  a  complete  copy  would  prac- 
tically destroy  the  value  of  the  books  in  the  hands  of  the  plain- 
tiff. So  a  similar  compilation  by  any  one  else  would  have  a 
like  result.  The  value  of  the  books  except  as  used  is  nothing. 
They  resemble  in  nature,  if  not  precisely,  the  possessions  which 
are  consulted  by  any  person  who  makes  an  income  from  his  ac- 
quired knowledge,  whether  scientific  or  otherwise;  as  a  survey- 
or's notes,  an  author's  memoranda,  a  druggist's  recipes  and 
many  analogous  things.  They  may  be  and  are  very  service- 
able, but  they  are  not  things  that  the  law  has  made  subject  to 
seizure  or  assessment.  If  these  books  Avere  taxable  as  per- 
sonalty they  could  be  made  liable  to  satisfy  it,  and  this  in  our 
opinion  can  not  be  done.  "^^  In  1899  the  legislature  of  Mich- 
igan passed  an  act  making  tract  indices  liable  to  seizure  and 
sale  on  execution  in  like  manner  as  other  personal  property.     It 

0  Davis  V.   Abstract  Construction  lo  Poiry  v.  Tlio  City  of  Big  Rap- 

Co.,  121   111.  App.  121    (1905).     See       ids,   07  Mich.    140;    34   N.   \V.   Rop. 
Fidelity  Trust  Co.  v.  Clerk,  05  N.       530;    11  Am.  St.  Rep.  570    (I8S7). 
J.  L.  495;  47  Atl.  Rep.  451    (1900). 
See  §  83. 


INDICES  TAX^iBLE.  153 

was  afterward  held  that  this  act  did  not  make  a  set  of  tract  in- 
dices subject  to  taxation.  The  court  said:  "Making  it  subject 
to  levy  upon  execution  does  not  render  it  subject  to  taxation ;  so 
making  it  subject  to  taxation  would  not  render  it  subject  to 
sale  upon  execution."  ^^ 

§  144.  Tract  indices  are  taxable.  A  set  of  abstract  books, 
although  compiled  in  the  form  of  abbreviations  and  cipher,  so 
as  to  be  intelligible  to  but  few  persons,  is  personal  property- 
having  a  money  value  and  is  subject  to  taxation  under  the  laws 
of  the  state  of  Washington.  In  so  holding  the  court  said: 
"The  only  question  involved  in  this  case  is  whether  a  set  of  ab- 
stract books  is  included  within  the  term  'personal  property'  for 
the  purposes  of  taxation.  The  proof  shows  that  the  infor- 
mation contained  in  the  books  is  largely  in  the  form  of  abbre- 
viations and  cipher  peculiar  to  that  particular  set  of  books  and 
only  five  persons  understood  them,  as  far  as  was  known  to  the 
manager  and  secretary  of  the  company,  that  no  information 
could  be  derived  from  the  books  except  by  an  expert  in  that  line 
of  business,  and  that  it  would  be  necessary  for  him  to  under- 
stand such  abbreviations  and  cipher.  It  is  contended  that  the 
books  were  of  no  value  to  the  public  or  to  any  one  who  did  not 
understand  them;  that  while  the  books  originally  in  blank  form 
were  of  some  value,  the  fact  that  they  contained  such  writings 
had  destroyed  this  value  even,  and  that  they  are  not  assessable 
for  the  purpose  of  taxation.  There  was  some  proof  however  to 
show  that  certain  maps  connected  with  the  business  had  a  gen- 
eral value  to  the  extent  perhaps  of  $100.  "We  are  of  opinion 
that  the  property  was  subject  to  taxation.  The  fact  that  it  re- 
quires the  services  of  an  expert  to  obtain  the  necessary  infor- 
mation from  the  books  may  detract  from  their  value  in  a  general 
sense,  but  would  not  deprive  them  of  all  taxable  value."  ^- 
Under  the  law  of  Iowa,  making  all  property,  whether  real  or 
personal,  subject  to  taxes,  except  such  as  is  therein  expressly 
made  exempt,  tract  indices  to  the  real  estate  in  a  county,  which 
are  capable  of  being  used  by  persons  of  ordinary  intelligence 
as  a  means  of  profit,  and  which  have  a  market  value,  are  not 
exempt  from  taxes  because  of  their  manuscript  character.     In 

"  Loomis  V.  City  of  Jackson,  130  12  Booth,    etc.,    Abstract     Co.    v. 

Mich.  594;  90  N.  W.  Kep.  328  Phelps,  8  Wash.  549;  36  Pac.  Rep. 
.(1902).  489    (1894). 


154  TRACT  INDICES, 

SO  holding  the  court  said: — "The  books  are  admitted  to  have 
an  actual  market  value,  and,  for  the  purpose  of  learning  the 
title  to  lands  in  Decatur  county,  they  can  be  used  by  any  one  of 
ordinary  intelligence  and  ability.  It  is  also  admitted  that  they 
contain  a  true,  full  and  complete  record  of  the  title  of  each, 
tract  of  land  and  town  lot  in  Decatur  county,  Iowa.  The  books ' 
have  an  admitted  value  of  $6,000;  have  changed  hands  as  arti- 
cles of  commerce ;  are  kept  in  an  office  building  as  the  posses- ; 
sion  of  a  person  for  profit  by  the  receipt  of  fees  for  transcripts' 
of  their  contents;  and  their  value  consists  chiefly  in  their  being 
correct  compilations  from  public  records  and  not  because  their 
contents  are  emanations  from  the  learning  or  genius  of  an  in- 
dividual. *  *  *  These  abstract  books  answer  the  origi- 
nal design,  are  complete,  and  placed  before  the  public  for  use 
and  profit.  They  were  not  made  for  publication  in  a  general 
sense.  Such  publication  would  defeat  the  very  purpose  of 
their  production.  Their  value  consists  chiefly  in  their  contents 
being  kept  from  the  public.  They  are  the  means,  in  a  sense 
the  instruments,  for  carrying  on  a  business;  as  much  so  as  are 
the  tools  or  machinery  by  which  the  artisan  plies  his  calling. 
*  *  *  It  may  be  said  that  the  value  of  books  in  general 
depends  on  the  information  they  contain  and  that  such  infor- 
mation is  derived  from  consultation;  but  for  such  abstract  rea- 
sons they  are  no  less  property  subject  to  the  operation  of  the 
revenue  laws  of  the  state. ' '  ^^ 

§  145.  Sale  of  tract  indices  on  execution.  In  an  early  case 
it  was  held  that  a  set  of  abstract  books,  containing  memoranda 
compiled  from  the  public  records  and  so  arranged  as  to  facilitate 
the  examination  of  titles  to  real  estate  in  a  certain  county,  were 
not  subject  to  seizure  and  sale  under  execution.  The  court  held 
that  the  right  of  the  proprietor  of  unpublished  manuscripts, 
such  as  tract  indices,  to  publish  them  or  keep  them  back  from 
publication  is  not  only  a  property  right,  but  one  which  is  purely 
incorporeal  and  attended  with  considerations  of  a  nature  en- 
tirely different  from  any  involved  in  other  rights,  and  in  the 
course  of  the  opinion,  said:  "The  right  is  one  which  is  entirely 
independent  of  locality  and  belongs  essentially  to  the  owner 
wherever  he  may  be,  and  in  whatever  locality  one  or  more  copies 

13  Leon  Abstract  Co.  v.  Equaliza-  Rep.  94;  41  Am.  St.  Rep.  486 
tion  13oaid,  80  la.   127;   53  N.  W.        (1892). 


HELD  ON  EXECUTION.  155 

of  the  writings  may  be  found.  The  value,  when  it  is  consid- 
ered at  all  in  a  pecuniary  sense,  depends  on  the  information  or 
interest  of  the  composition  or  document,  and  not  on  the  partic- 
ular bundle  of  paper  which  records  it.  *  *  *  No  law  can 
compel  a  man  to  publish  what  he  does  not  choose  to  publish."  ^* 
Where  the  statutes  exempted  from  execution  the  necessary  tools 
and  instruments  of  any  person,  used  and  kept  for  the  purpose  of 
carrying  on  his  trade  or  business,  it  was  held  that  abstract  books 
kept  by  one  who  had  no  other  business  than  that  of  an  abstract 
maker  were  exempt  from  execution.  The  court  said:  "The 
exemption  laws  must  receive  a  liberal  construction  for  the  pur- 
pose of  carrying  out  their  object  and  design,  and  one  of  the  main 
objects  of  exemption  laws  is  that  any  person  shall  have  the  means 
of  carrying  on  some  useful  business  and  thereby  of  obtaining 
an  honest  livelihood. "  ^^  Where  the  statute  enumerates  the 
classes  of  persons  whose  books  shall  be  exempt  from  execution, 
the  debtor  must  be  one  of  the  classes  of  persons  named  in  the 
statute,  in  order  that  his  books  may  be  exempt.  An  abstracter 
does  not  come  within  the  definition  of  a  mechanic.^® 

§  146.  Indices  taken  on  execution  may  not  be  copied.  In  one 
case  in  which  the  right  to  levy  on  a  set  of  tract  indices  was 
not  discussed,  it  was  nevertheless  held  that,  when  such  a  set  of 
books  is  levied  on  under  execution,  the  owner's  exclusive  right 
to  the  information  contained  in  the  books  is  not  divested  until 
a  sale  of  the  property.  The  le\y  merely  suspends  his  right  to 
possess,  use  and  dispose  of  the  books,  and  on  payment  of  the 
debt  the  owner  has  the  right  to  have  all  of  the  books  returned  to 
him  in  exactly  the  same  condition  as  they  were  when  seized, 
usual  wear  and  tear  incident  to  removal  and  preservation  being 
excepted.  The  sheriff  has  no  right  to  make  or  to  dispose  of 
copies  of  the  books.  In  passing  on  these  matters  the  court  said : 
— "I  think  the  learned  judge  certainly  goes  a  great  way  be- 
yond the  law  in  holding  that  a  sheriff  may  use  property  which 
he  has  possession  of  under  a  levy  for  his  own  advantage,  or  that 
he  can  do  anything  concerning  it  save  to  preserve  it  for  the  best 
interests  of  the  debtor  and  creditor,  for  whose  mutual  benefit 
he  holds  it.     I  do  not  think  the  debtor  loses  any  rights  in  his 

14  Dart   V.    Woodhouse,   40   Mich.    399;  29  Am.  Rep.  544   (1879). 

15  Davidson  v.   Sechrist,   28   Kan.    324    (1882). 

16  Tyler    v.    Coulthard,    95    Iowa    705;  64  N.  W.  Rep.  681    (1895). 


156  TRACT  INDICES. 

property  when  it  is  levied  upon,  save  and  except  the  immediate 
I^^ossession  and  control  of  it ;  and  on  payment  of  the  debt  he  has 
the  right  to  have  it  returned  to  him  in  exactly  the  same  con- 
dition in  which  it  was  at  the  time  of  the  seizure,  usual  wear 
and  tear  of  removal  and  preservation  only  excepted.  The  sheriff 
has  no  personal  right  of  possession ;  his  possession  is  that  of  the 
law,  whose  agent  he  is,  and  he  has  no  right  to  use  the  property 
or  profit  by  its  possession  in  any  way  whatever.  In  the  inter- 
val between  levy  and  sale  the  debtor  is  not  divested  of  his  owner- 
ship in  the  property,  but  the  incident  of  title,  the  right  to  pos- 
sess, use  and  dispose  of  the  property,  is  suspended  only,  which 
he  may  regain  at  any  moment  by  paying  the  debt.  There  can 
be  no  doubt  that  the  sheriff  was  guilty  of  a  flagrant  violation  of 
his  duty  in  copying  the  plaintiff's  books,  and  that  an  action  will 
lie  against  him  for  the  damage  the  plaintiff  has  sustained  by 
reason  of  his  misconduct.  It  was  a  proper  case  for  the  equitable 
intervention  of  the  court  by  injunction  to  restrain  the  issuing  of 
the  copies  by  sale  or  otherwise  to  the  damage  of  the  plaintiff."  ^^ 
§  147.  Mortgage  on  indices  may  be  foreclosed.  The  owner 
of  a  set  of  tract  indices  who  so  far  treats  them  as  valuable  prop- 
erty as  to  secure  a  loan  by  the  execution  of  a  chattel  mortgage 
on  them,  is  estopped  to  assert,  in  a  proceeding  to  foreclose  the 
mortgage,  that  the  records  would  be  of  no  value  in  the  hands  of 
anyone  but  the  compiler.^^ 

17  Banker  v.  Caldwell,  3  Minn.  94       Co.,    15   Wash.   487;    46   Pac.    Rep. 
(Gil.  4G),    (1859).  1036(1890).    See  Freeman  on  Exe- 

18  Washington   Bank   v.   Abstract      cation    (2nd  Ed.),  §  110. 


CHAPTER  XIV. 

TITLE   INSURANCE. 

§  148.  In  general.  A  contract  of  title  insurance  has  been 
defined  as  "a  contract  to  indemnify  against  loss  through  de- 
fects in  the  title  to  real  estate  or  liens  or  incumbrances 
thereon."^  Another  writer  has  said:  "Title  insurance  is  an 
agreement  whereby  the  insurer,  for  a  valuable  consideration, 
agrees  to  indemnify  the  insured  in  a  specified  amount  against  loss 
through  defects  of  title  to  real  estate  wherein  the  latter  has  an 
interest,  either  as  purchaser  or  otherwise."^  Title  insurance 
is  designed  to  indemnify  the  insured  from  loss  or  damage 
arising  by  reason  of  defects  in  the  title  existing  at  the  date  of 
the  issue  of  the  policy.  The  defects  against  which  it  insures 
must  antedate  the  policy,  and  those  arising  after  the  date  of 
the  policy  are  not  covered  by  it.  Other  kinds  of  insurance  are 
intended  to  protect  the  insured  from  loss  on  account  of  certain 
contingencies,  casualties  and  events  which  may  take  place  after 
the  issue  of  the  contract  and  during  its  continuance.  As  has 
been  said  many  times,  other  insurance  begins  where  title  in- 
surance ends,  namely,  at  the  date  of  the  policy.  A  glance  at  the 
definitions  above  given  will  disclose  that  they  are  lacking  in 
one  of  the  essential  characteristics  of  title  insurance.  They  ig- 
nore the  fact  that  the  defects  insured  against  must  exist  at  the 
time  the  contract  is  entered  into.  Title  insurance  is  a  contract 
to  idemnify  the  insured,  within  a  specified  amount,  in  his  in- 
terest in  real  estate  as  therein  set  forth,  against  loss  by  reason 
of  defects  in  the  title  existing  at  its  date.  A  title  policy  applies 
to  a  situation  as  it  then  exists. 

§  149.  Title  insurance  is  not  a  wager.  In  its  distinctive 
features  title  insurance  is  not  a  wager  or  the  taking  of  a  risk  on 
the  validity  of  the  title.  The  theory  of  such  insurance  is  that 
no  known  risks  are  taken.     The  muniments  of  title  are  carefully 

1  1  Cooley  on  Insurance,  p.  12. 

2  Frost    on    Guaranty    Insurance,    §  162. 

157 


158  TITLE  INSURANCE. 

examined  by  skilled  lawyers,  and  the  exact  condition  of  the  title 
is  stated.  The  title  company  sets  forth  in  the  policy  the  state 
of  the  title  and  agrees  to  indemnify  the  insured  if  it  is  mis- 
taken in  the  matter  and  loss  results  to  the  insured  in  consequence 
of  the  mistake.  Of  course  there  is  always  the  possibility  of  mis- 
take in  questions  of  title.  INIen  learned  in  the  law  of  real  estate 
may  differ  as  to  the  legal  effect  of  instruments  or  court  proceed- 
ings found  in  the  chain  of  title.  There  is  also  a  possibility  that 
the  abstract  of  title,  which  is  the  basis  of  the  opinion  as  to  the 
state  of  the  title,  may  be  imperfect  or  erroneous.  If  there  were 
no  risks  in  accepting  titles  to  real  estate  there  would  be  no  such 
thing  as  title  insurance,  for  insurance  suggests  the  idea  of  pro- 
tection from  risk.  Title  companies  adopt  a  system  of  carrying 
on  their  business,  rely  on  the  ability  and  skill  of  their  officers 
and  examiners  on  the  questions  involved  in  titles  which  are  sub- 
mitted for  insurance,  select  those  titles  -which  they  are  willing  to 
insure,  refuse  those  which  they  consider  dangerous  or  unsatisfac- 
tory, and  take  the  risks  which  are  incident  to  their  business. 
The  lawyer  who  passes  on  a  title  covenants  with  the  employer 
that  ordinary  skill  and  diligence  has  been  exercised  in  the  work 
performed,  but  in  insuring  a  title  a  company  goes  far  beyond 
this.  It  not  only  guarantees  the  correctness  of  the  certificate 
of  title  set  forth  in  the  policy,  but  it  agrees  to  indemnify  the  in- 
sured in  case  of  loss  by  reason  of  any  defect  in  the  title  as  stated. 
This  contract,  while  containing  little  of  a  speculative  nature, 
has  in  it  enough  of  that  element  to  make  it  highly  desirable  for 
those  who  deal  in  lands,  and  who  know  little  or  nothing  about 
the  complicated  and  intricate  laws  of  real  estate.  It  relieves 
the  sense  of  anxiety  as  to  possible  mistakes  in  the  examination 
of  the  public  records,  gives  security  against  errors  of  judgment 
on  any  legal  questions  which  may  be  involved  in  the  title,  and 
covers  the  forgery  of  instruments  in  the  chain  of  title.  It  has 
not  supplanted  covenants  of  warranty  of  title  in  deeds  of  convey- 
ance, but  in  some  respects  it  stands  to  the  title  in  a  relation  sim- 
ilar to  such  covenants.  It  is  used  by  the  public,  in  addition  to 
such  covenants,  as  a  safeguard  and  protection  in  dealing  with 
titles  to  land,  and  the  experience  of  the  past  twenty-five  years, 
and  the  great  development  of  the  business  of  issuing  such  con- 
tracts, have  demonstrated  thoroughly  the  need  and  benefits  of 
title  insurance. 


CERTIFICATE  OF  TITLE.  150 

§  150.  Guaranty  of  correctness  of  certificate  of  title, — title 
insurance.  There  is  a  difference  between  a  guaranty  of  the 
correctness  of  a  certificate  of  title  and  a  policy  of  title  insurance. 
Where  a  company  makes  a  certificate  of  title  to  a  certain  piece 
of  land,  issues  it  to  a  person,  his  heirs  and  assigns,  and  guaran- 
tees it  to  be  correct,  it  is  a  guaranty  of  the  correctness  of  the 
certificate.  On  the  execution  of  such  a  contract,  if  the  title  to 
the  property  is  not  as  stated  in  the  certificate,  there  is  an  im- 
mediate breach  of  its  conditions,  and  suit  may  be  brought  against 
the  company.  But  a  policy  of  title  insurance  is  a  contract  of 
indemnity  against  loss  which  may  arise  by  reason  of  defects  in 
the  title  as  stated,  and  under  such  a  contract  actual  loss  must 
precede  the  bringing  of  a  suit  and  the  fixing  of  compensation 
or  damages.  The  difference  between  these  two  forms  of  con- 
tract lies  in  the  time  of  the  breach  of  the  contract  and  the  con- 
sequent running  of  the  statute  of  limitations,  and  in  the  rule  of 
damages,  but  where  the  holder  of  a  guaranteed  certificate,  within 
the  period  of  the  statute  of  limitations,  pays  out  money  to  per- 
fect his  title  or  to  pay  off  a  prior  lien,  and  brings  an  action  on 
the  guaranty  of  the  certificate,  the  action  will  proceed  in  all 
respects  as  an  action  on  a  policy  of  title  insurance.^  Where  a 
certificate  of  title  issued  to  the  owner  of  the  fee  provides  that 
the  guarantor  shall  not  be  liable  for  damages  to  exceed  a  cer- 
tain amount,  that  it  will  defend  the  guarantee  or  his  heirs  against 
every  "claim  adverse  to  the  title  guaranteed,"  that,  if  a  loss 
under  the  certificate  is  less  than  all  the  land,  the  company  shall 
be  liable  only  for  a  proportionate  share  of  the  loss,  and  that  the 
guarantor,  in  case  it  makes  payments  under  the  certificate,  shall 
be  subrogated  to  the  rights  of  the  guarantee,  the  instrument  is 
a  title  insurance  policy.  It  is  not  rendered  a  mere  guaranty  of 
the  correctness  of  the  certificate  by  the  additional  provision  that 
the  company  guarantees  the  certificate  to  be  correct.* 

§  151.  Contract  is  founded  on  examination  of  abstract  of 
title.  A  contract  of  title  insurance  is  based  on  the  examination 
of  the  public  records  and  on  the  examination  of  an  abstract  pre- 
pared from  the  records.  If  there  is  a  defect  in  the  abstract,  it 
may  appear  in  the  policy.  While  a  title  insurance  company  in 
practical  effect  insures  the  sufficiency  of  the  abstract  of  title, 

3See§§32,  36.  Mo.   App.    5;    67    S.    W.    Rep.    726 

4Purcell    V.    Land    Title    Co.,    94       (1902). 


160  TITLE  INSURANCE. 

ou  which  it  is  founded,  the  contract  to  search  the  records  is  dis- 
tinct and  separate  from  the  contract  of  insurance.  Under  a 
contract  to  search,  the  company  is  liable  for  damages  which  its 
negligence  may  have  imposed  on  the  employer,  but  an  action  on 
a  contract  of  insurance  is  based  on  the  fact  that  loss  has  oc- 
curred because  the  company  did  not  correctly  state  the  condition 
of  the  title.  Under  a  contract  of  title  insurance,  no  question  of 
negligence  in  searching  the  records  can  arise,  and  the  doctrine 
of  skill  or  negligence  has  no  application.  In  a  suit  on  a  policy 
it  cannot  be  shown  that  the  company  was  negligent  in  searching 
the  records.  The  action  is  not  based  on  that  ground,  and  a 
plaintiff  may  not  plead  on  one  cause  of  action  and  recover  on 
another.^ 

§  152.  Extra  premium  for  a  known  risk.  The  premium  or 
compensation  paid  for  title  insurance  is  small  as  compared  with 
premiums  paid  for  other  insurance.  This  arises  from  the  fact 
that  title  insurance  is  not  of  a  speculative  nature.  Sometimes 
questions  of  difficulty  and  uncertainty  are  found  in  a  title,  which 
may  give  rise  to  litigation,  though  not  to  a  probable  defeat  of  the 
title.  These  may  be  of  such  a  threatening  character  as  to  cause 
the  company  to  refuse  to  issue  a  policy  until  after  an  appro- 
priate legal  proceeding  has  been  carried  out,  curing  the  defects, 
or  they  may  be  the  basis  of  negotiation  for  an  increase  of  pre- 
mium for  a  known  risk.  This  form  of  insurance  against  known 
risks  is  urged  on  title  companies  by  the  vendors  of  lands  and 
real  estate  agents,  w^ho  are  anxious  to  carry  out  their  sales,  and 
by  mortgagors  who  are  anxious  to  obtain  money  on  the  security 
of  their  lands,  but  title  companies  are  inclined  to  avoid  such 
risks.  Some  companies  insure  the  marketability  of  the  titles 
covered  by  their  ordinary  policies,  but  even  when  this  is  not  the 
case,  a  company  desires  to  have  it  known  and  understood  that 
its  policies  of  insurance  are  also  certificates  that  titles  are  as 
stated,  without  undisclosed  defects  or  irregularities.  If  the  pur- 
chaser of  property,  desiring  to  use  and  occupy  the  premises  for 
a  number  of  years,  is  willing  to  take  the  title  when  the  uncer- 
tainties or  irregularities  are  explained  to  him,  the  company  may 

5  Trenton    Potteries    Co.    v.    Title  17  C.  C.  A.  5G;   36  U.  S.  App.  50 

Guar.  Co.,  17G  N.  Y.  G5;  GS  N.  E.  (IS;).")).      See  Trimble    v.    Stewart, 

I^ep.   132    (1903).     Minnesota  Title  3,")  :\Io.  App.  537   ( 18S9). 
Co.    V.    Dre.xol,    70    Fed.    Rop.    194; 


NATURE  OF  DEFECT.  161 

properly  assume  the  risk  if  it  desires  to  do  so.  Where,  however, 
the  property  may  soon  be  sold  again,  situations  of  embarrass- 
ment are  likely  to  arise  from  the  taking  of  such  risks.  In  cases 
of  mortgage  policies,  where  the  insurance  is  only  for  the"  period 
of  the  existence  of  the  debt  and  the  amount  of  the  policy  is  only 
about  half  of  the  appraised  value  of  the  property,  it  might  seem 
to  be  natural  and  appropriate  to  pass  questions  of  irregularity 
and  uncertainty,  pertaining  to  the  quality  and  not  to  the  valid- 
ity of  the  title.  But  on  non-payment  of  the  debt  and  conse- 
quent foreclosure  of  the  mortgage,  the  lender  of  the  money,  un- 
less the  difficulties  in  the  title  were  originally  explained  to  him, 
may  well  complain  that  in  relying  on  the  policy  he  has  been 
burdened  with  a  title  of  doubtful  merchantability.  Experi- 
ence has  taught  title  companies  that  the  assumption  of  kno\vTi 
risks  for  increased  premiums  frequently  interferes  with  the  dig- 
nified and  orderly  conduct  of  their  business. 

§  153.  Nature  of  defect  which  must  exist  at  date  of  policy. 
A  policy  of  title  insurance  covers  defects  in  the  title  at  its  date, 
not  excepted  by  its  terms.  It  is  not  necessary  that  the  defect 
should  be  in  actual  existence  at  the  date  of  the  policy  in  order 
to  hold  the  company  in  case  of  a  subsequent  loss,  but  it  is  suffi- 
cient if  there  is  an  inchoate  or  a  potential  defect  then  in  exist- 
ence, w'hich  afterward,  by  the  happening  of  some  event  or  the 
act  of  some  person,  becomes  a  reality  and  imposes  a  loss  on  the 
insured.  If,  for  instance,  a  company,  by  the  assumption  of  a 
known  risk,  or,  what  is  much  more  likely,  by  mistake,  should  in- 
sure that  an  absolute  fee  title  passed  to  A  under  a  will  probated 
before  the  date  of  the  policy,  and  it  should  afterward  be  de- 
termined that,  by  reason  of  the  subsequent  happening  of  a  cer- 
tain event,  the  title  of  A  had  failed  or  had  been  diminished,  the 
company  would  be  liable.  In  such  a  case  the  title  of  A  under 
the  will  contained  a  potential  defect  at  the  date  of  the  polic}^; 
the  subsequent  happening  of  the  event  ripened  it  into  an  actual 
defect,  and,  as  such,  it  related  back  under  the  will  to  the  date 
of  the  death  of  the  testator.  The  most  familiar  example  of 
an  inchoate  lien  which  may  afterward  arise  and  acquire  an 
actual  existence  prior  to  the  date  of  the  policy  is  a  mechanic's 
lien.  A  mechanic's  lien  law  usually  provides  that,  when  a  notice 
of  a  lien  is  filed,  the  lien  shall  relate  back  and  attach  as  of  the 

date  of  the  commencement  of  the  work,  or  as  of  the  date  of  the 
11 


162  TITLE  INSURANCE. 

first  delivery  of  material  for  the  buildincr.  If  a  policy  is  issued 
while  a  building  is  under  construction,  there  may  be  no  me- 
chanic's lieu  of  record,  but  afterward  such  a  lien  may  be  filed, 
which  will  relate  back  to  a  time  prior  to  the  date  of  the  policy, 
and  bind  the  company  under  its  contract  of  insurance. 

§  154,  Forms  of  contracts  of  title  insurance.  Some  title  pol- 
icies use  the  word  "insure"  and  others  use  the  word  "guar- 
antee," but  where  the  substance  of  the  contracts  is  the  same, 
there  is  no  distinction  to  be  made  between  them  on  account  of 
the  use  of  these  terms.  Each  title  company  has  its  own  forms 
of  contract.  Some  contracts  merely  guarantee  the  correctness 
of  the  certificate  of  title;  some  "certify  and  guarantee" 
that  the  insured  has  a  certain  interest  in  the  title;  some  insure 
that  the  title  to  the  property  is  marketable  and  merchantable, 
while  others  expressly  declare  that  the  company  shall  not  be  lia- 
ble in  any  event  for  loss  arising  from  the  refusal  of  any  per- 
son to  carry  out  any  contract  to  purchase,  lease  or  loan  money 
on  the  title;  some  fix  a  maximum  amount  of  indemnity  which 
may  be  recovered,  and  others  guarantee  the  title  generally.  In 
some  policies  the  duration  of  the  contract  is  limited  to  a  certain 
number  of  years.  Some  contracts  provide  that,  on  notice,  the 
company  wnll  at  its  own  cost  defend  any  legal  action  in  which 
the  title  prior  to  the  date  of  the  policy  is  attacked.  Some  com- 
panies issue  different  forms  of  policies  at  dift'erent  rates  of  com- 
pensation. The  variations  in  the  terms  of  policies  arise  out  of 
different  local  conditions  of  public  records,  and  out  of  the  de- 
mand of  the  public  for  particular  forms  of  policies,  as  W'ell  as 
out  of  the  opinion  and  judgment  of  the  officers  of  the  company. 

§  155.  In  speaking  generally  of  title  insurance,  reference  is 
made  to  the  contract  of  indemnity,  by  which  the  company  obli- 
gates itself  to  pay  for  any  loss  by  reason  of  defects  in  the  title, 
or  of  prior  liens  or  incumbrances  on  it.  It  is  usually  accom- 
panied by  an  agreement  on  the  part  of  the  company  to  defend 
the  insured  against  any  attack  on  the  title  for  matters  arising 
prior  to  its  date.  It  is  sometimes  accompanied  by  an  insurance 
of  the  marketability  or  merchantability  of  the  title.  Under  this 
latter  insurance,  if  the  insured,  in  the  ordinary  course  of  busi- 
ness, contracts  for  a  loan  on  the  property,  or  to  sell  it,  and  the 
title  is  refused  for  reasons  in  existence  at  the  date  of  the  policy, 
the  company  will  test  its  validity  in  court  at  its  own  expense, 


TWO  KINDS  OF  POLICIES.  163 

and,  if  defeated,  will  pay  damages  or  make  the  loan,  or  when 
the  insured  has  contracted  in  good  faith  to  sell  it,  will  take  the 
property  at  the  contract  price. 

§  156.  Two  kinds  of  title  policies.  Generally  speaking,  there 
are  two  kinds  of  title  policies,  an  owner's  policy,  sometimes  called 
a  fee  policy,  and  a  mortgage  policy.  These  are  divided  into 
forms  to  meet  special  conditions.  As  to  fee  policies,  the  owner 
is  insured  in  his  own  title ;  the  purchaser  is  insured  in  the  title 
of  his  vendor  at  the  date  of  the  purchase ;  there  is  a  form  for  in- 
suring a  corporation  and  its  successors  instead  of  an  individual, 
his  heirs  and  devisees;  there  is  a  form  for  insuring  the  pur- 
chaser at  a  judicial  sale  when  there  is  a  period  of  redemption 
from  such  sale.  As  to  the  mortgage  policies,  one  form  insures 
the  mortgagee;  where  a  trust  deed  is  used  to  secure  the  debt, 
one  form  insures  the  trustee  named  in  it,  for  the  use  and  benefit 
of  the  owner  of  the  indebtedness,  and  another  insures  the  owner 
of  the  indebtedness  secured  by  the  trust  deed,  either  by  name  or 
by  the  general  description.  Sometimes  it  requires  some  in- 
genuity to  construct  a  policy  to  cover  the  insurance  of  some 
special  interest.  In  the  matter  of  an  incumbrance  by  way  of 
mortgage,  it  is  to  be  observed  that  the  company  does  not  insure 
that  such  an  incumbrance  is  a  first  or  other  lien  on  the  premises. 
No  such  direct  language  is  used  in  the  policy.  It  sets  forth  the 
state  of  the  title  with  reference  to  the  instrument  in  question 
and  describes  it  as  a  valid  instrument,  without,  however,  in- 
suring that  there  is  a  valid  indebtedness  secured  thereby. 
Whether  the  mortgage  or  trust  deed  described  in  the  policy  has 
actually  attached  as  a  lien  on  the  premises  depends  on  matters 
outside  of  the  record  of  title.  If  the  supposed  lender  has  ob- 
tained the  evidences  of  indebtedness  and  security  by  fraud,  or 
if  he  has  not  paid  out  the  money  on  account  of  them,  the  in- 
strument is  not  really  a  lien,  and  a  title  company  does  not  in- 
sure as  to  these  personal  matters  which  the  lender  must  be  re- 
sponsible for.  "When  he  has  done  all  that  is  required  of  him  as 
a  mortgagee,  the  contract  will  protect  him  against  any  prior  de- 
fects in  the  title  or  any  prior  incumbrances,  and  against  any  in- 
validity of  the  instrument  securing  the  indebtedness.*' 

§  157.    Application  for  a  policy.    A  fee   policy   is  usually 

6  See  appendix,  form  C. 


164  TITLE  INSURANCE. 

issued  on  a  written  application  by  or  on  behalf  of  the  person 
insured,  and  it  usually  provides  that  the  application  shall  be 
held,  against  all  parties  claiming  under  it,  to  be  a  warranty  of 
the  facts  therein  stated.  It  is  fair  and  proper  for  a  title 
company  to  inipiire  into  the  conditions  surrounding  a  title  which 
it  is  asked  to  insure,  and  it  is  just  to  require  of  one  holding  the 
title,  or  about  to  acquire  it,  that  he  give  accurate  information 
concerning  those  conditions.  With  regard  to  mortgage  policies, 
however,  the  situation  is  somewhat  different.  The  lender  is  not 
supposed  to  know  anything  about  the  title.  He  examines  the 
property  itself  and  passes  on  the  sufficiency  of  the  security  for 
the  amount  to  be  loaned,  -and  he  requires  the  borrower  to  furnish 
him  with  a  title  policy,  in  order  that  he  may  be  protected  in  the 
validity  of  the  mortgage  or  trust  deed,  and  in  the  quality  of  the 
title  to  the  property.  The  borrower  must  answer  the  questions 
set  out  in  the  application,  and  manifestly  it  would  be  unfair  to 
require  the  lender  to  be  bound  by  the  truth  of  the  answers. 
For  this  reason  mortgage  policies  usually  make  no  reference  to 
the  written  application,  and  title  companies  take  the  risk  as  to 
the  truthfulness  of  the  answers  of  borrowers  in  applications  for 
mortgage  policies.  Persons  often  seek  fee  policies  because  of 
some  known  question  or  defect  in  the  title,  and  it  is  proper  that 
inquiry  on  this  point  should  be  made  by  the  company,  so  that 
particular  attention  may  be  directed  to  the  questions  involved. 
But  an  application  for  a  mortgage  policy  is  usually  made  by  the 
borrower  because  the  lender  demands  the  policy  as  a  condition 
to  the  making  of  the  loan,  and  where  the  owner  is  seeking  in- 
surance for  the  benefit  of  the  lender,  and  not  for  his  own  pro- 
tection, it  is  not  so  likely  that  there  is  any  known  question  in  the 
title.  Mortgages  are  usually  for  about  half  the  value  of  the 
property,  and  in  ease  of  loss  on  a  mortgage  policy,  the  company 
may  have  some  salvage  out  of  which  it  may  recoup  its  loss,  or  a 
part  of  it.'' 

§  158.  Application,  representations  and  warranties.  The  same 
general  principles  apply  to  applications  for  title  insurance, 
which  apply  to  applications  for  other  kinds  of  insurance.  There 
are  hundreds  of  cases  in  the  books,  which  treat  of  the  effect  on 
the  contract  of  answers  made  in  applications  for  insurance. 
]\Iany  of  these  cases  may  be  applied  to  policies  of  title  insurance. 

7  See  forms  of  applications  in  ap  pendix. 


APPLICATION  FOR  POLICY.  165 

When  the  truth  of  the  answers  is  warranted  in  the  contract,  but 
the  company  knows  when  it  issues  the  policy  that  certain  an- 
swers are  false,  it  must  be  held  to  have  waived  the  falsity  of  such 
answers.  A  company  may  not  issue  a  policy  which  it  knows  to 
be  void  in  its  inception.*  A  policy  of  title  insurance  referred  to 
a  written  application  and  provided  that  "any  untrue  statement 
or  suppression  of  a  material  fact  affecting  the  title,  or  any  un- 
true answer  to  questions  contained  in  said  above  application, 
by  the  insured  or  his  agent,  shall  avoid  this  policy,  excepting 
as  against  a  mortgagee  not  privy  thereto."  The  application  con- 
tained this  provision:  "It  is  agreed  that  the  following  state- 
ments are  correct  and  true,  to  the  best  of  the  applicant's  knowl- 
edge and  belief,  and  that  any  false  statement  or  any  suppres- 
sion of  material  information  shall  avoid  the  policy."  Questions 
by  the  company  and  answers  by  the  insured  followed  this  pro- 
vision, and  among  them  was  this:  Question.  "Last  price  paid 
for  the  property?"  Answer.  "$11,000."  The  application 
was  signed  by  the  insured,  and  the  policy  was  issued  to  him. 
The  insured  borrowed  $4,500  on  the  property,  and  the  title 
policy  was  assigned  to  the  mortgagee  with  the  consent  of  the 
company.  The  deed  to  the  insured  was  a  forgery,  and  the  in- 
sured, instead  of  having  paid  $11,000  for  the  property,  had 
given  to  the  impersonator  of  its  owner,  as  the  consideration  for 
the  supposed  conveyance  of  the  property,  $3,000  in  cash  and 
some  mining  stock  of  little  or  no  value.  The  title  company,  on 
learning  these  facts,  took  up  the  note  of  the  mortgagee,  but  de- 
clined to  pay  anything  to  the  insured,  on  the  ground  that  he 
had  made  a  false  answer  to  the  above  question  as  to  the  price 
which  had  been  paid  for  the  property.  The  court  held  that  the 
answer  was  a  warranty,  and  that,  being  false,  it  avoided  the 
policy.  The  court  said:  "The  'last  price'  referred  to  in  the 
application,  question  and  answer,  was  the  price  paid  by  plaintiff 
to  the  person  who  executed  the  deed  to  him.  The  question 
called  for  a  statement  of  the  actual,  and  not  merely  a  nominal 
price, — of  the  price  in  money  or  money's  worth;  and  from 
the  answ^er  the  defendant  could  understand  nothing  else  but 
that  the  sum  stated  was  the  actual  money  price.  The  evidence 
of    the    plaintiff    showed    beyond    dispute    that    in    the    deal 

8  Quigley  V.  St.  Paul  Title  Co.,  60      Minn.    275;    62    N.    W.    Rep.    287 
(1895). 


166  TITLE  INSURANCE. 

with  the  person  who  personated  Uihlein,  and  which  resulted  in 
the  deed  to  plaintiff,  no  money  price  was  agreed  on;  that  it 
was  not  a  sale  for  money  or  money's  value,  but  that  the  plain- 
tiff holding  stock  in  a  mining  corporation  to  the  amount,  par 
value,  of  $15,000,  but  which  as  the  jury  find,  was  of  very  little 
value  in  the  market  in  St.  Paul,  where  the  transaction  was  had, 
and  find  also  that  plaintiff  knew  it  was  of  little  value,  he  trans- 
ferred the  stock  and  paid  $3,000  in  cash  for  the  conveyance. 
The  consideration  stated  in  the  deed  was  $11,000. — at  whose 
suggestion  inserted,  does  not  appear.  The  actual  consideration 
was  the  stock,  of  little  value,  as  plaintiff'  knew,  and  the  $3,000. 
It  is  not  a  case,  as  plaintiff  contends,  of  a  price  agreed  on  for 
the  land,  and  a  subsequent  tender  on  the  one  part,  and  accep- 
tance on  the  other,  of  property  in  lieu  of  money,  in  satisfaction 
of  such  price.  It  was  a  trade  of  the  stock  and  the  $3,000  for 
the  land."^ 

§  159.  Stipulations  and  conditions  of  a  policy.  The  same  gen- 
eral rules  govern  the  stipulations  and  conditions  of  all  policies 
of  insurance.  Such  stipulations  and  conditions  differ  only  as 
the  character  of  the  insurance  differs.  It  is  competent  for  the 
company  to  insure  the  title  to  specific  pieces  of  property  on  such 
terms  and  conditions  as  may  be  agreed  to  by  the  insured.  It  may 
limit  its  liability  under  a  policy  by  fixing  its  terms  and  conditions 
in  any  manner  to  which  the  person  accepting  its  policy  may 
agree.  When  the  contract  of  title  insurance  has  been  agreed  up- 
on, it  is  subject  to  the  same  rules  of  construction  as  are  applicable 
to  policies  of  other  kinds  of  insurance;  such  a  contract  is  one  of 
insurance  pure  and  simple.  In  case  of  doubt  or  ambiguity  in 
any  of  its  provisions,  the  contract  will  be  construed  most  favor- 
ably to  the  insured.^" 

§  160.  Condition  that  defect  must  he  established  by  court.  A 
condition  in  a  title  policy  declared  that  no  right  of  action  should 
accrue  "unless  the  insured  has  contracted  to  sell  the  estate  or 
interest  insured,  and  the  title  has  been  declared,  by  a  court  of 
last  resort  of  competent  jurisdiction,  defective  or  incumbered 
by  reason  of  a  defect  or  incumbrance  for  which  the  company 

oStcnsgaard  v.  St.  Paul  Title  Co.,  Fed.  Rep.   1!)4;   17  C.  C.  A.  56;  36 

50  Minn.  429;    52  N.  W.   Kep.  910  U.    S.    App.    50    (1895).      Place   v. 

(1892).  St.    Paul    Ins.    Co.,    07    Minn.    126; 

10  Minn.  Title   Co.   v.   Diexel,   70  69  N.  W.  Hep.  700    (1897). 


STIPULATIONS  AND  CONDITIONS.  1G7 

would  be  liable  under  this  policy."  This  condition  has  no  ap- 
plication to  a  case  where  the  property  is  held  by  another  per- 
son in  actual  adverse  possession,  and  the  insured  has  lost  it  ab- 
solutely by  reason  of  the  fact  that  he  has  not  been  able  to  get 
possession  of  it.^^ 

§  161.  Condition  that  there  must  be  an  eviction.  A  condition 
in  a  title  policy  that  "no  claim  shall  arise  under  the  policy  un- 
less the  party  insured  has  been  actually  evicted  under  an  ad- 
verse title  insured  against"  means  that  there  must  be  an  eviction 
by  process  of  law  taken  under  legal  proceedings.  Adjudged 
cases  in  actions  on  covenants  of  warranty  of  title  as  to  what  con- 
stitutes eviction  are  of  little  aid  in  determining  whether  there  has 
been  such  an  eviction  as  will  entitle  the  holder  of  a  title  policy 
to  recover  against  the  company.  The  contract  of  the  warrantor 
is  without  conditions,  but  title  companies  agree  to  indemnif}'  on 
certain  written  conditions.  There  must  be  a  breach  of  the  ex- 
press conditions  in  order  to  create  a  liability  under  the  policy. 
In  some  respects  a  warrantor  and  a  title  company  stand  in 
similar  relation  to  the  title,  but  his  contract  is  different  from 
that  contained  in  a  title  polic}^^- 

§  162.  Condition  in  case  of  foreclosure  of  mortgage.  A  mort- 
gage policy  contained  a  condition  that  no  right  of  action  should 
accrue  on  it  until  the  insured  had  agreed  to  convey  to  the  com- 
pany his  interest  in  the  property  at  a  price  which,  in  the  case  of 
a  title  acquired  through  foreclosure,  should  be  the  amount  bid 
at  the  foreclosure  sale,  and  that  payment,  discharge  or  satis- 
faction of  the  mortgage  indebtedness,  except  by  foreclosure  of 
the  mortgage,  should  annul  the  policy.  After  the  issue  of  the 
policy,  suits  were  brought  to  establish  mechanic's  liens  on  the 
property,  claimed  to  have  existed  when  the  policy  was  issued. 
The  company  defended  them,  but  the  liens  were  established,  and 
the  property  was  sold  to  satisfy  them.  The  mortgagee  fore- 
closed his  mortgage  and  bought  in  the  property  for  the  amount 
due  on  his  mortgage  with  interest  and  costs.  The  insured 
offered  to  convey  the  property  to  the  title  company  for  the 
amount  bid  at  the  foreclosure  sale,  and  demanded,  in  default 

11  Place  V.  Title  Ins.  Co.,  67  71  N.  J.  L.  600;  61  Atl.  Rep.  83 
Minn.  120;  69  N.  W.  Rep.  706  (1905).  Barton  v.  Title  Co.,  64 
(1897).  N.    J.    L.    24;    44    Atl.    Rep.    871 

12  Ocean  View  v.  Title  Guar,  Co.,  (1899). 


IGS  TITLE  INSURANCE. 

of  a  purchase  for  that  amount,  that  the  company  redeem  the 
property  from  the  sale  under  the  mechanic's  liens.  The  com- 
pany declined  to  do  either.  The  insured  redeemed  the  prop- 
erty and  sued  the  title  company  for  the  amount  so  paid.  The 
court  said:  "The  policy  provides  that,  where  by  foreclosure 
the  insured  has  acquired  title  to  the  property,  the  price  to  be 
paid  b}''  the  insurer  'shall  be  the  amount  bid  at  said  foreclosure 
sale.'  The  defendant  was  obligated  by  the  terms  of  the  policy 
either  to  pay  this  amount  or  to  relieve  the  property  from  all  liens 
existing  thereon  at  the  date  of  the  policy.  It  refuses  to  do 
either,  and  seeks  to  escape  all  liability  by  putting  the  burden  of 
freeing  the  property  from  the  liens  existing  thereon  at  the  date 
of  the  policy  upon  the  mortgagee,  on  the  ground  that,  at  the 
sale  of  the  property  under  the  mortgage,  the  mortgagee  bid 
the  full  amount  of  his  mortgage  debt  and  thereby  himself  as- 
sumed the  burden  of  paying  off  the  mechanic's  liens.  Under  the 
terms  of  the  policy,  the  mortgagee  had  a  right  to  look  to  the  de- 
fendant for  the  extinguishment  of  all  liens  upon  the  property 
which  existed  at  the  date  of  the  policy,  and  to  gauge  his  bid  on 
the  assumption  that  the  defendant  would  discharge  its  obliga- 
tion in  this  regard.  The  contention  of  the  defendant  is  in  the 
teeth  of  a  very  plain  provision  of  the  policy  which  declares: 
'Payment,  discharge  or  satisfaction  of  said  mortgage  indebted- 
ness (except  by  foreclosure  of  said  mortgage)  *  *  *  shall 
fully  terminate,  annul  and  avoid  this  policy  and  all  liability 
of  the  company  thereunder.'  The  case  at  bar  falls  directly 
within  this  exception.  We  need  not  consider  what  effect  this 
provision  would  have  where  the  property  was  purchased  by 
a  stranger  at  the  foreclosure  sale.  Be^'ond  controversy,  it  in- 
cludes and  binds  the  parties  to  the  contract,  and  is  applicable 
to  every  case  where  the  mortgagee,  insured,  becomes  the  pur- 
chaser of  the  property  at  the  foreclosure  sale  for  the  amount 
of  the  mortgage  debt."" 

§  163.  Conditions  as  to  special  assessments  or  mechanic's  liens. 
Title  insurance,  in  its  main  features,  is  intended  to  apply  to 
and  to  cover  the  chain  of  title  from  the  government  to  the 
person  who  deals  with  the  land  and  obtains  a  title  policy.  It 
is  not  primarily  or  usually  obtained  in  order  to  guard  against 

13  Minn.   Title    Co.   v.   Drexel,    70     Fed.  Rep.  194;   17  C.  C.  A.  56;   36 
U.  S.  App.  50   (1895). 


STIPULATIONS  AND  CONDITIONS.  1G9 

loss  from  liens  and  charges  which  are  incident  to  the  owner- 
ship of  real  estate,  or  which  grow  out  of  situations  and  con- 
ditions in  its  management,  not  disclosed  by  the  public  records. 
One  who  is  about  to  purchase  a  city  or  town  lot,  or  who  is 
about  to  loan  money  on  it,  will  doubtless  examine  the  premises. 
He  may  see  for  himself  the  condition  of  the  municipal  im- 
provements, and  he  may  ask  of  the  owner  the  production  of 
receipts  to  show  that  the  improvements  which  are  finished  have 
been  paid  for.  He  will  know  whether  building  operations  on 
the  lot  are  in  progress  and  whether  he  should  guard  against 
mechanic's  liens.  Special  assessments  and  mechanic's  liens,  not 
of  record,  are  not  usually  coveted  by  title  insurance  policies. 
In  most  forms  of  policies  there  is  a  special  provision  that  loss 
or  damage  by  reason  of  special  taxes,  special  assessments,  water 
rentals  or  water  taxes  which  have  not  been  confirmed  by  a  court 
of  record,  and  mechanic's  liens  when  no  notice  thereof  appears 
of  record,  are  not  covered  by  the  policy.  With  most  companies, 
therefore,  protection  against  mechanic's  liens  which  may  arise, 
attach  and  relate  back  is  not  a  matter  of  general  and  ordinary 
title  insurance,  but  is  a  matter  of  special  arrangement  and 
contract.  When  a  purchaser  or  mortgagee  of  property  desires 
protection  against  mechanic's  liens,  he  pays  over  the  money, 
or  a  part  of  it,  to  a  title  company  which  pays  it  out  as  the 
work  progresses,  obtains  the  necessary  waivers  and  releases 
of  liens,  and  makes  a  special  charge  for  the  service. 

§  164.  Condition  as  to  special  assessments.  A  title  company 
issued  a  mortgage  policy  insuring  the  holder  against  loss  by 
reason  of  defects  in  the  title,  excepting  such  as  were  set  forth 
in  schedule  B.  This  schedule  set  forth,  as  not  insured  against, 
"the  unmarketability  of  the  title  by  reason  of  the  possibility 
of  mechanics'  liens  and  municipal  liens"  and  added  "but  actual 
losses  by  reason  of  such  liens  or  by  reason  of  the  non-completion 
of  the  building  now  in  process  of  erection  on  the  premises, 
unless  such  building  should  happen  to  be  destroyed  by  fire, 
are  hereby  insured  against."  Three  years  after  the  date  of 
the  policy  municipal  work  was  done  in  paving  the  street,  for 
which  a  special  assessment  was  levied  on  the  property.  It  was 
held  that  this  assessment  was  not  a  charge  on  the  property 
at  the  date  of  the  policy  and  created  no  cause  of  action  under 
it.     The   court  said:     "The   general   intent   and   effect   of   the 


170  TITLE  INSURANCE. 

■whole  policy  were  to  insure  the  mortgage  as  a  valid  security 
both  as  to  title  and  incumbrances.  As  to  title,  all  defects  were 
included  except  the  one  of  unmarketability  by  reason  of  pos- 
sibility of  liens;  as  to  liens  or  incimibrances,  only  those  were 
included  which  come  under  either,  first,  the  main  covenant, 
those  actually  charging  the  property  at  the  date  of  the  policy, 
or  secondly,  under  schedule  B,  'mechanics'  or  municipal  claims 
which  do  or  may  now  exist'  at  the  same  date,  to-wit,  inchoate 
mechanics'  liens  which,  though  not  yet  in  actual  existence, 
may,  within  six  months  of  the  completion  of  the  building,  spring 
up  and  acquire  the  existence  as  of  a  date  prior  to  the  policy. 
Not  until  by  the  lapse  of  time  the  dangers  of  such  liens  should 
be  passed,  would  the  mortgage  be  secure  as  a  first  incumbrance. 
Before  so  secure,  there  was  the  danger  not  only  of  mechanics' 
but  also  of  municipal  liens  intervening.  The  latter  were  there- 
fore classed  with  the  former,  and  actual  loss  by  reason  of 
either  was  insured  against.  But  there  is  no  covenant  or  lan- 
guage indicating  any  intent  to  go  beyond  that  limit  of  time, 
and  to  assume  a  general  liability  to  indemnify  against  possible 
future  incumbrances,  municipal  or  other.  The  policy  was  ex- 
ecuted in  1888.  The  municipal  w^ork  for  which  the  claims  ia 
question  were  filed  was  not  done  till  1891.  Such  claims  were 
neither  a  charge  on  the  property  at  the  date  of  the  policy, 
nor  became  so  within  the  period  provided  for  in  schedule  B. 
They  were  not  within  the  policy  at  all  and  created  no  cause 
of  action  under  it.  "^* 

§  165.  Stipulation  to  defend  the  insured.  A  policy  provided 
that  the  company  should  at  its  own  cost  defend  the  insured  in 
every  proceeding  adverse  to  the  title  thereby  guaranteed,  pro- 
vided, within  a  reasonable  time  after  the  commencement  of 
the  action,  the  insured  should  give  the  company  written  notice 
of  the  pendency  of  the  proceeding.  The  title  of  the  insured 
was  divested  by  the  foreclosure  of  a  mortgage  which  was  a 
lien  on  the  premises  when  the  policy  was  issued  and  was  not 
excepted  therein.  In  a  suit  on  the  title  policy  it  was  admitted 
that  no  notice  of  the  foreclosure  proceeding  had  been  given 
to  the  company,  but  plaintiff  alleged  that  defendant  had  waived 
the  notice.     On  the  trial  of  the  suit  on  the   policj^   plaintiff 

14  Wheeler  v.  Title  Co.,   160  Pa.    St.  408;  28  Atl.  Rep.  849   (1894). 


STIPULATION  TO  DEFEND.  171 

testified  that  when  he  first  heard  of  the  outstanding  mortgage 
he  informed  an  agent  of  the  company  of  its  existence,  that  the 
agent  told  him  it  did  not  amount  to  anything  and  not  to  pay 
any  further  attention  to  it,  and  that  on  account  of  what  the 
agent  then  said  he  gave  no  notice  to  the  company  when  he  was 
served  with  process  in  the  foreclosure  suit.  In  passing  on  this 
testimony  the  court  said:  "If  the  plaintiff  relied  on  the  state- 
ment of  the  agent  that  he  need  pay  no  attention  to  the  (mort- 
gage) and  that  it  was  for  that  reason  that  he  did  not  give  the 
written  notice  of  the  foreclosure  proceedings,  the  defendant  is 
estopped,  under  the  rule,  from  availing  itself  of  plaintiff's 
failure  in  that  respect. ' '  ^^ 

A  title  company  issued  a  mortgage  policy  in  a  sum  not  ex- 
ceeding $2,200,  covering  a  mortgage  of  that  amount.  Among 
the  stipulations  and  conditions  of  the  policy  was  the  following: 
*'This  company  will,  at  its  own  cost  and  charge,  defend  the 
insured  in  all  actions  in  ejectment  or  other  proceedings  founded 
upon  a  claim  of  title  or  incumbrance  prior  in  date  to  this 
policy,  and  not  herein  and  in  schedule  B  excepted."  Some 
months  afterward  the  mortgagee  foreclosed  the  mortgage  and 
bid  in  the  property  at  the  sale.  No  redemption  was  made,  and 
he  became  the  owner  of  the  property.  After  the  policy  was 
issued  a  mechanic's  lien  was  filed  which  related  back  to  a  time 
prior  to  the  date  of  the  policy.  This  mechanic's  lien  was 
foreclosed  in  a  suit  to  which  the  mortgagee,  a  non-resident, 
was  made  a  party,  and  the  lien  was  adjudged  to  be  paramount 
to  the  lien  of  the  mortgage.  The  property  was  sold,  and,  no 
redemption  having  been  made,  a  deed  was  issued,  which  divested 
the  title  of  the  original  mortgagee.  The  company  was  notified 
of  the  commencement  of  the  suit  to  foreclose  the  mechanic's 
lien  and  conducted  the  defence  of  the  same  in  the  name  of 
the  mortgagee  under  the  provisions  of  the  policy  above  quoted. 
It  was  claimed  that  the  company  was  negligent  in  not  notifying 
the  original  mortgagee  of  the  condition  of  the  suit,  of  the 
entry  of  the  decree  foreclosing  the  mechanic's  lien  and  of  the 
sale  of  the  property,  and  that  the  measure  of  damages  was 
the  value  of  the  property  which  was  lost  by  the  foreclosure 
of    the    mechanic's    lien,    and    not    the    $2,200    fixed    as    the 

"Purcell  V.  Land  Title   Co.,   94    Mo.   App.    5;    67    S.   W.    Rep.    726 
(1902). 


172  TITLE  INSURANCE. 

maximum  of  insurance.  The  court  said:  "When,  under  the 
terms  of  this  policy,  the  insurer  undertook  to  defend  the  in- 
sured, it  was  bound  to  protect  him  through  all  stages  of  the 
proceeding,  or  else  notify  him  that  it  would  not,  in  time  to 
enable  him  to  protect  himself.  It  was  also  bound  to  furnish 
him  at  such  time  all  reasonable  information  of  the  status  of  the 
adverse  claims,  so  as  to  enable  him  to  take  all  proper  precautions 
for  his  protection.  The  defendant  failed  to  protect  the  insured, 
and  has  failed  to  prove  that  it  gave  him  any  such  notice  in 
time  to  enable  him  to  protect  himself;  therefore,  as  a  question 
of  law,  the  plaintiff  was  entitled  to  recover  full  compensatory 
damages."  A  judgment  against  the  company  for  $2,650,  the 
value  of  the  property,  was  sustained. ^^ 

§  166.  Subrogation  of  insurer  to  rights  of  insured.  An  owner 
of  certain  lands  mortgaged  them,  and,  at  the  same  time  and  as 
further  security  for  the  indebtedness,  the  owner  and  certain 
sureties  executed  to  the  lender  a  bond  which,  after  reciting  the 
execution  of  the  note  and  mortgage  to  secure  money  with 
which  to  erect  and  complete  a  building  on  the  premises,  was 
conditioned  that  he  would  complete  the  building,  pay  and  dis- 
charge all  claims  and  demands  for  labor  and  material  furnished 
for  the   building,   and  all  liens   on   account   thereof,   and   in- 

16  Quigley  v.  St.  Paul  Title  Co.,  he     could     recover     the     maximum 

60  Minn.  275;   62  N.  W.   Rep.  287  amount   of   insurance   provided    for 

(1895);    64  Minn.   149;    66   N.  W.  in  the  contract.      He  also  had  the 

Rep.   364    (1896).      It  would  seem  right    to    sue    it    for    negligence    in 

that  while  substantial   justice  may  its    undertaking    to    carry    out    the 

have  been  done  between  the  parties  terms    of    the    stipulation    and    he 

to  this  suit,  the  plaintiff  was  per-  could    recover    tlie    full    amount    of 

mitted  to  declare  on  one  cause  of  his   loss,   to-wit,   the   value   of   the 

action  and  to   recover  on   another.  property.     But  it  is  difficult  to  sec 

The    company    undertook    to    carry  how,  in  a  suit  on  the  contract  of 

out  the  stipulation  of  the  policy  to  insurance,   he  could  obtain  greater 

act   as   his    agent   and    attorney    in  indemnity  than  tlie  contract  called 

the    proceeding    "founded    upon    a  for.       It    might    be    supposed    that 

claim  of  title  or  incumbrance  prior  the      $2,650      was      tlie      maximum 

in  date  to  this  policy,"  but  was  so  amount  of  the  policy  with   interest 

derelict  and   negligent  tliat  the  in-  to   the   date   of   the   judgment,    but 

sured   lost   his    property.       He    had  the    opinion    expressly    states    that 

the   right   to   sue   the   company   on  the  premises  were  found  by  the  jury 

its    policy    because    his    title    was  to  be  worth  $2,650,  the  amount  of 

divested   by   reason  of  a  lien   exist-  the  verdict, 
ing  at  the  date  of  the  policy,  and 


SUBROGATION.  173 

demnify   and  save   harmless  the   lender   from  all   such  claims 
and  all  liens  on   account  of  or  arising  out  of  the  same,  and 
from  any  damage  or  loss  arising  therefrom,  including  all  ex- 
penses  of   litigation    incurred   in    clearing    or   satisfying    such 
liens.     Thereafter    a    title    company    issued    to    the    lender    a 
mortgage  policy  of  insurance  agreeing  to  indemnify  the  mort- 
gagee  against  prior  liens,  in  which  policy  it  was  provided  that 
if  the  company  should  be  compelled  to  pay  any  sums  under 
the  contract  of  insurance,  it  should  be  subrogated  to  all  the 
rights    of   the    mortgagee    under    the   mortgage   or   otherwise. 
Subsequently  certain   liens  for  labor  and  material   furnished 
for  the  building  on  the  mortgaged  premises  were  adjudged  to 
be  superior  to  the  lien  of  the  mortgage.     Thereupon  the  title 
company  paid  and  satisfied  these  liens,  according  to  the  terms 
of  its  policy,  and  obtained  from  the  lender  an  assignment  of 
the  bond.     It  then  brought  an  action  on  the  bond  to  recover 
the  money  so  paid  to  satisfy  the  liens.     The  court  said:     "This 
statement  of  the  facts  is  all  that  is  necessary  to  show  that  the 
case   was  rightly  decided  in   favor  of  the   plaintiff.     If    (the 
owner  of  the  mortgage)  had  paid  off  the  liens,  he  would  have 
had  a  cause  of  action  on  the  bond  to  recover  the  amount  thus 
paid  out.     He  would  not  have  been  compelled  to  wait  until  his 
mortgage  matured,  and  then   foreclose,   in   order  to   ascertain 
if  the  premises  would  bring  enough  to  pay  both  the  mortgage 
debt  and  the  amount  paid  to  discharge  prior  liens,  and  then 
sue  on  the  bond  for  the  deficiency,  if  any.     Defendant's  counsel 
conceded  this  on  the  argument.     The  bond  may  be,  as  coimsel 
suggests,  one  of  indemnity,  and  that  the  obligee  must  allege  and 
prove  loss  or  damage.     But  that  loss  or  damage  is  sustained 
when  he  has  to  pay  off  liens  on  the  property,  which  by  the 
terms  of  the  bond  the  obligors  should  have  paid  or  caused  to 
be   paid.     One   of   the   conditions   of  the  bond   was  that  the 
obligors  would  indemnify  the  obligee  from  any  expense  incurred 
in  clearing  or  satisfying  liens  on  the  property.     But  it  makes 
no  difference  whether  the  holder  of  the  mortgage,  in  the  first 
instance,  paid  off  the  liens,  or  whether  the  plaintiff  paid  them 
off,  as  obligated  by  its  policy.     When  plaintiff,  as  insurer  of 
the  title,  paid  them  off,  it  was  entitled,  as  between  itself  and 
defendants,  to  be  subrogated  to  the  mortgagee's  rights  in  all 
securities  which  he  held  to  protect  his  interest  as  mortgagee 


174  TITLE  INSURANCE. 

against  the  liens.  As  between  the  mortgagee  and  the  plaintiff, 
the  latter 's  right  of  subrogation  would  have  been  subject  to 
the  paramount  right  of  the  former  to  the  securities,  as  indemnity 
against  other  liens;  but,  as  the  holder  of  the  mortgage  has 
voluntaril}^  assigned  the  bond  to  the  plaintiff,  no  such  question 
is  involved  in  this  ease."^^ 

§  167.  Defects  in  title  not  insured  against.  "Tenancy  of  the 
present  occupants"  was  mentioned  in  a  policy  of  title  insurance 
as  a  defect  in  the  title  against  which  the  company  did  not 
insure.  The  phrase  was  construed  to  mean  the  tenancy  which 
arises  through  the  occupation  or  temporary  possession  of  the 
premises  by  those  who  are  tenants  in  the  popular  sense  of  the 
word,  and  was  held  not  to  include  the  claim  of  a  person  who, 
asserting  ownership  in  fee  as  against  the  title  insured,  was 
in  actual  adverse  occupation  at  the  time  the  policy  was  issued. 
"Tenancy  of  the  present  occupants"  does  not  mean  "title  of 
the  present  occupants."^® 

§  168.  List  of  defects  or  liens  in  schedule  E.  A  schedule 
attached  to  a  policy  of  title  insurance  to  show  in  detail  any 
liens  "which  do  or  may  now  exist,  and  against  which  the 
company  does  not  agree  to  insure  or  indemnify,"  does  not 
profess  to  set  out  all  the  incumbrances  or  liens  which  exist 
against  the  property.  A  certificate  of  title  would  set  out 
every  possible  lien  against  the  property,  but  such  a  schedule 
only  specifies  those  liens  or  incumbrances  which  shall  not  be 
within  the  protection  of  the  insurance.  If  any  lien  or  incum- 
brance is  omitted  from  this  list,  the  presumption  is  that  the 
company  assumed  the  risk  of  any  loss  which  might  result 
to  the  insured  because  of  the  existence  of  the  omitted  lien  or 
incumbrance.^^ 

§  169.  Scope  of  the  contract  of  title  insurance.  A  policy  of 
title  insurance  states  the  condition  of  the  title  to  the  real  estate 
described  in  it,  sets  forth  the  interest  of  the  insured  in  the 
title,  and  agrees  to  indemnify  him  if  the  condition  of  the  title 
and  his  interest  are  not  as  stated.     If  the  company  issuing  the 

"St.     Paul    Title     Ins.     Co.  v,  Minn.    12G;    09    N.    W.    Rep.    706 

Johnson,  fi4   Minn.  492;   07   N.  W.  (1897). 

Rep.  .54.3   (1890).  i9  Fidelity   Ins.   Co.   v.   Earle,   23 

18  Place    V.     Title    Ins.    Co.,  07  Pa.  Co.  C.  Hep.  449    (1900). 


SCOPE  OF  CONTRACT.  175 

policy  is  mistaken  as  to  the  condition  of  the  title,  or  as  to  his 
interest  in  the  property,  and  loss  occurs  by  reason  of  the  mis- 
take, the  company  must  indemnify  the  insured  to  the  extent 
of  his  loss,  provided  it  does  not  exceed  any  maximum  amount 
which  may  be  named  in  the  policy.  Where  one  in  possession 
of  real  estate,  claiming  to  own  it  in  fee  simple,  in  good  faith 
applied  to  a  title  company  for  insurance  and  received  a  policy 
insuring  him  in  a  fee  simple  title,  and  thereafter  in  a  partition 
proceeding  it  was  decided  that  he  had  only  a  half  interest  in 
the  property,  he  may  recover  from  the  company  one  half  of 
the  value  of  the  property,  and  it  cannot  claim  that,  as  he 
never  had  title  to  the  half  interest,  he  suffered  no  loss.  In 
discussing  this  subject  it  was  said: — "A  case  stated  was 
agreed  upon,  and  the  cause  submitted  to  the  court  below,  which 
entered  judgment  in  the  following  language:  'This  policy 
is  not  a  guaranty  of  title,  but  a  contract  of  indemnity.  The 
plaintiff  has  lost  nothing.  Judgment  for  defendant  on  case 
stated.'  In  reaching  this  conclusion,  the  learned  court  adopted 
the  suggestion  of  the  defendant  that  the  plaintiff  lost  nothing, 
because  he  never  did,  in  fact,  have  the  title  to  the  entire  interest, 
as  he  supposed  he  had,  and  therefore  he  could  not  be  said  to  lose 
that  which  he  had  never  owned.  As  a  logical  statement  taken 
in  the  abstract,  this  is  unassailable;  but,  in  determining  whether 
or  not  the  failure  of  his  title  to  the  one-half  interest  in  the 
property  constituted  such  a  loss  as  would  entitle  him  to  in- 
demnity under  the  terms  of  his  insurance  policy,  we  must  ex- 
amine the  contract  in  the  light  of  the  purpose  or  object  for 
which  it  was  made.  It  is  admitted  that,  if  plaintiff  had  pur- 
chased or  improved  the  property  in  reliance  upon  the  policy, 
lie  could  recover;  but  as  he  was  in  possession  as  owner,  before 
he  applied  for  and  received  the  insurance,  it  is  urged  that  he 
lost  nothing,  because  he  expended  nothing  in  reliance  upon  the 
policy.  "We  cannot  see  any  sound  reason  for  this  attempted 
distinction  between  the  rights  of  a  present  and  prospective 
owner,  who  applies  for  title  insurance.  Relief  of  mind  to  an 
owner,  obtained  through  title  insurance,  is  quite  as  desirable 
as  the  same  assurance  furnished  to  a  prospective  purchaser 
or  mortgagee.  The  sole  object  of  title  insurance  is  to  cover 
possibilities  of  loss  through  defects  that  may  cloud  or  invalidate 
titles.     It  is  for  the  assumption  of  whatever  risk  there  may  be, 


176  TITLE  INSURANCE. 

in  such  connection,  that  the  premium  is  paid  to  and  accepted 
by  the  company  which  issues  the  policy.  Title  insurance  is 
not  mere  guesswork,  nor  is  it  a  wager.  It  is  based  upon 
careful  examination  of  the  muniments  of  title,  and  the  exercise 
of  judgment  by  skilled  conveyancers.  The  quality  of  a  title 
is  a  matter  of  opinion,  as  to  which  even  men  learned  in  the 
law  of  real  estate  may  differ.  A  policy  of  title  insurance 
means  the  opinion  of  the  company  which  issues  it,  as  to  the 
validity  of  the  title,  backed  by  an  agreement  to  make  that 
opinion  good,  in  case  it  should  prove  to  be  mistaken  and  loss 
should  result  in  consequence  to  the  insured.  'Loss'  is  a  relative 
term.  Failure  to  keep  that  which  one  has,  is  loss.  The  plain- 
tiff in  this  case,  upon  September  12,  189-1,  found  himself  in 
possession  of  a  property,  devised  to  him,  as  he  supposed  and 
claimed,  in  the  will  of  his  mother.  Wishing  to  safeguard  him- 
self in  the  enjoyment  of  his  title,  he  applied  to  the  defendant 
company  for  insurance.  *  *  ^  n  must  be  borne  in  mind 
that  the  real  subject  of  insurance  is  not  the  concrete  thing, 
but  the  interest  which  the  one  to  be  indemnified  has  in  the 
concrete  thing.  The  interest  which  plaintiff  desired  to  protect 
was  the  entire  interest  as  owner  in  fee  of  the  property  in 
question.  It  was  this  interest  which  he  submitted  to  defendant 
company  as  the  subject-matter  of  insurance.  It  was  for  the 
company,  then,  to  examine  the  evidence  of  his  title,  and  to 
say  whether  or  not  it  would  assume  the  risk  of  making  good 
to  him  the  injury  which  would  result,  in  case  his  claim  of 
title  to  the  entire  interest  should  prove  defective.  The  con- 
tract which  he  asked  for,  and  which  by  its  policy  the  company 
made  with  him,  was  one  of  insurance  against  defects  in  the 
title,  as  he  claimed  it  to  be  and  as  the  company  agreed  with 
him,  after  examination,  that  it  was,  viz.,  title  to  the  entire 
interest  in  the  property.  The  policy  applied  to  the  situation 
as  it  then  existed.  It  insured  the  plaintiff  against  defects, 
unmarkctability,  liens,  and  incumbrances  as  of  that  date.  It 
said  to  him:  'You  are,  in  our  judgment,  the  owner  in  fee 
of  the  entire  interest  in  this  property,  and  we  will  back  our 
opinion  by  agreeing  to  hold  you  harmless,  up  to  the  amount 
of  the  policy,  in  case  for  any  reason  our  judgment  in  this 
respect  should  prove  to  be  mistaken.'  The  risks  of  title  in- 
surance end,  where  the  risks  of  other  kinds  of  insurance  begin. 


SCOPE  OF  CONTRACT.  1  (  < 

Title  insurance  is  designed  to  protect  the  insured,  and  save 
him  harmless  from  any  loss  arising  through  defects,  liens,  or 
incumbrances  that  may  be  in  existence,  affecting  the  title  when 
the  policy  is  issued.  It  does  not  protect  against  any  claim 
arising  after  the  issuance  of  the  policy.  In  the  present  case, 
the  validity  of  the  plaintiff's  claim  to  the  entire  interest  in 
the  property  depended  upon  the  construction  of  the  language 
of  the  will  of  Louisa  Foehrenbach.  Evidently  the  defendant 
company,  having  the  will  before  it,  construed  the  devise  as  a 
life  estate  on  the  first  taker,  and  a  fee  in  the  remainderman; 
otherwise,  it  would  not  have  issued  its  policy  insuring  a  fee  in 
the  remainderman.  In  adopting  this  construction,  it  was  mis- 
taken, for  when,  some  10  years  afterwards,  the  question  was 
raised  in  the  orphans'  court,  under  the  partition  proceedings, 
it  was  decided  that  the  first  taker  took  a  fee  simple.  The 
title  of  the  plaintiff  to  the  property  in  question  was  not,  there- 
fore, derived  from  his  mother,  as  claimed  by  him  in  his  applica- 
tion for  insurance,  but  whatever  interest  he  had  came  to  him 
through  his  half-brother,  John  Baker,  from  whom  he  took 
only  an  undivided  one-half  interest.  Can  there  be  any  doubt 
that  the  reduction  of  his  interest  in  the  property  from  an  owner- 
ship of  the  whole,  to  that  of  one-half,  was  a  defect,  coming 
directly  within  the  terms  of  the  policy?  No  matter  whether 
or  not  the  question  of  the  amount  of  his  interest  was  doubtful 
when  the  policy  was  issued,  the  risk  of  insuring  him  in  his 
claim  of  title  was  one  which  the  defendant  could  legitimately 
take,  if  it  chose  to  do  so.  Insurance  carries  with  it  the  idea 
of  protection  against  some  risk.  If  there  were  no  risk,  there 
would  be  no  cause  for  insurance.  The  underlying  principle  of 
insurance  is  the  contribution  of  small  sums  by  a  large  number 
of  insured,  to  a  common  fund,  from  which  to  indemnify  those 
who  actually  suffer  the  loss,  which  might  have  fallen  upon 
any  of  them.  Actual  loss,  of  course,  must  precede  the  right 
of  compensation ;  but  that  is  measured  by  the  standard  accepted 
as  between  the  parties.  In  this  case  the  standard  of  interest, 
which  was  claimed  by  appellant,  was  ownership  in  fee  of  the 
entire  property.  That  standard  was,  after  examination  of  the 
muniments  of  title  by  the  defendant  company,  admitted  as 
correct,  and  the  policy  of  insurance  was  issued,  for  a  proper 
consideration,  agreeing  to  insure  the  plaintiff  against  any  loss 

12 


178  TITLE  IXSUIJANCE. 

or  damage  by  reason  of  defects  in  that  particular  interest  or 
claim  of  title  which  he  had  presented  to  the  company;  that  is, 
against  any  outstanding  claim  which  would  reduce  his  interest 
below  that  which  he  claimed  it  to  be.  It  requires  no  argument 
to  show  that  the  absolute  failure  of  title  to  one-half  the  interest 
was  a  serious  defect,  as  compared  in  extent  and  quality  with 
the  title  to  the  entire  interest,  which  he  had  asserted  and  sub- 
mitted to  the  defendant  company  as  the  basis  upon  which  the 
insurance  was  to  be  effected,  and  which  was  accepted  and 
approved  by  it,  as  set  forth  in  the  policy.  The  estate  or  interest 
of  the  insured  which  was  covered  by  the  policy  was  that  of 
owner  in  fee  of  the  entire  property.  Any  defect  in  title  which 
reduced  his  interest  below  that  point  was  it  seems  to  us,  just 
that  much  loss  or  damage,  for  which  he  was  entitled  to  be  in- 
demnified. The  fact  that  an  application  is  made  for  title  in- 
surance by  one  who,  at  the  time,  claims  to  be  the  owner,  is 
sufficient  of  itself  to  put  the  insurance  company  on  its  guard, 
and  ought  to  be  regarded  by  it  as  notice  that  unusual  care  should 
t>e  taken  in  the  examination  of  the  title."-" 

§  170.  Reformation  of  policy  of  title  insurance.  Where  a 
policy  of  title  insurance  covering  five  separate  pieces  of  prop- 
erty was  not  issued  at  the  time  the  deeds  to  four  of  the  parcels 
wer€  delivered  and  accepted,  but  its  issuance  was  postponed 
until  after  the  title  to  the  fifth  parcel  was  perfected,  evidence 
■of  the  facts  and  circumstances  under  which  the  contract  of 
insurance  was  made,  showing  that  there  was  no  purpose  on 
the  part  of  either  party  to  have  any  of  the  title  insured  beyond 
the  moment  when  they  became  the  property  of  the  insured; 
the  fact  that  the  issuance  of  a  single  policy  after  all  the  titles 
were  perfected  was  agreed  on  as  a  matter  of  convenience, 
with  no  thought  of  changing  the  liability  of  the  insurer  from 
what  it  would  have  been  if  a  policy  on  the  first  four  titles  had 
been  issued  when  the  conveyances  of  them  were  made,  and 
the  fact  that  there  was  no  mistake  as  to  the  actual  terms  of 
the  agreement  to  be  expressed  in  the  policy,  but  that  in  reducing 
it  to  writing  the  real  date  of  the  policy  as  to  the  four  pieces 
of  property  was  inadvertently  omitted,  will   justify  the  trial 

20  Foehrenbach  v.  Title  &  Trust  Co.,  94  Mo.  App.  5;  67  S.  W.  Rep. 
Co.,  Pa.  ;   66  Atl.   Rep.   561       726    (1902).     §  32. 

(1907).     See  Purcell  V. 'Lend  Title 


SURRENDER  UNDER  DECREE.  179 

court  in  reforming  the  policy  so  as  to  make  it  conform  to  the 
actual  agreement  of  the  parties.  In  such  a  case  the  insured 
cannot  maintain  an  action  to  compel  the  insurer  to  reimburse 
the  insured  for  the  amount  paid  on  a  special  assessment  which 
became  a  lien  on  one  of  the  four  properties  three  months  after 
the  insured  had  taken  title  thereto  and  possession  thereof, 
and  seven  months  before  the  policy  was  issued,  for  in  such  a 
case  the  insurer  is  not  liable  for  an  assessment  levied  on  that 
property  after  the  conveyance  of  it  to  the  insured,  but  before 
the  date  of  the  policy  as  inadvertently  given.^^  In  seeking 
to  reform  a  policy,  the  testimony  of  experts  in  title  insurance 
as  to  what  they  would  have  done,  or  as  to  what  ought  to  have 
been  done,  in  issuing  the  policy  in  question,  and  as  to  the 
custom  of  title  insurance  companies  in  such  cases,  it  is  not  ad- 
missible to  support  the  legal  conclusion  that  the  policy  should 
have  been  different  in  form.-- 

§  171.  Voluntary  surrender  of  property  under  terms  of  a  de- 
cree. Where  a  person  held  a  fee  policy  on  the  title  to  land 
of  which  he  was  in  possession,  and  afterward,  in  a  partition 
proceeding,  of  which  the  company  had  due  notice  under  the 
terms  of  the  policy,  it  was  decided  that  he  was  the  owner  of 
only  one-half  of  the  land,  and  he  voluntarily  surrendered  pos- 
session of  the  premises  to  the  purchaser  at  the  partition  sale, 
it  was  held  that  his  voluntary  surrender  of  the  premises  did 
not  preclude  a  recovery  on  the  policy.  Under  such  circum- 
stances both  he  and  the  company  were  bound  by  the  result  of 
the  litigation,  and  it  was  not  necessary  for  him  to  resist  the 
decree  to  the  point  of  being  physically  expelled  from  the  prem- 
ises. Proper  respect  for  the  court  forbade  any  physical  re- 
sistance to  its  decree.^^ 

§  172.  Eenewal  of  mortgage,  mechanic's  lien,  priority.  Where 
a  mortgage  on  a  piece  of  land  was  renewed  before  any  mechan- 
ic's lien  on  the  property  was  filed  and  in  ignorance  of  any 
intervening  lien  or  a  right  to  a  lien,  the  new  mortgage  will 

21  Trenton   Potteries  Co.  v.  Title  22  Trenton  Potteries   Co.  v.   Title 

Guar.  Co.,  176  N.  Y.  65;  68  N.  E.  Guar.  Co.,  supra. 

Rep.   132    (1903);   affinninjT  74  N.  23  Foehrenbach  v.  Title  Trust  Co., 

Y.    Supp.    170;    68   App.    Div.    636  Pa.           ;     66    Atl.     Rep.     561 

(1902);   reversing  64  N.  Y.   Supp.  (1907). 
116;   50  App.  Div.  490    (1900). 


ISO  TITLE  INSURANCE. 

occupy  the  same  place,  so  far  as  priority  is  concerned,  as  the 
one  it  superseded."* 

§  173.  Liability  for  use  of  party  wall.  The  OAvner  of  several 
adjoining  lots  conveyed  one  with  a  house  on  it  to  plaintiff, 
excepting  and  reserving  the  western  half  of  the  party  wall. 
He  then  sold  the  vacant  lot  and  the  right  to  use  this  party 
wall  to  another  person,  who  used  the  wall  in  building  a  house, 
and  refused  to  make  compensation  therefor.  The  plaintiff, 
when  he  purchased  the  property,  obtained  a  title  policy  which 
made  no  mention  of  the  party  wall,  and  when  his  adjoining 
neighbor  refused  to  pay  for  using  it,  he  brought  suit  on  the 
policy.  The  court  said:  "The  plaintiff  alleges  that  the  re- 
fusal of  the  adjoining  owner  to  make  compensation  is  an  in- 
cumbrance, or  if  not  an  incumbrance,  that  it  is  a  partial  eviction. 
AVe  are  unable  to  agree  with  the  plaintiff  in  either  way  he 
puts  his  claim.  The  party  wall  is  an  incumbrance  on  the 
adjoining  lot,  but  the  right  to  compensation  for  the  use  of  it 
is  not  an  incumbrance  under  the  policy  of  insurance.  It  is 
a  mere  chose  in  action.  It  is  not  a  lien  or  incumbrance  which 
has  been  or  could  be  put  into  judgment  against  the  plaintiff's 
property,  and  hence  cannot  be  recovered  in  a  suit  on  the  policy. 
Nor  has  there  been  an  eviction  which  must  be  an  ejection  from 
or  deprivation  of  a  thing.  The  plaintiff  has  not  lost  any  part 
of  his  property  by  eviction  under  an  adverse  title.  The  ground 
on  which  the  west  half  of  the  wall  rested  belonged  to  the  person 
who  used  the  wall  and  not  to  the  plaintiff.  All  that  the  plain- 
tiff lost  is  the  expectation  of  compensation  for  use  of  the  wall. 
That  was  not  covered  by  the  policy."-^ 

§  174.  Defence  to  action  on  title  policy.  It  is  no  defence  to 
an  action  on  a  title  insurance  policy  that  the  conveyancing  of 
the  property  was  done  by  the  insured's  conveyancer  who  de- 
scribed the  wrong  property  in  the  deed.-'' 

§  175.  Measure  of  damages  on  a  policy  of  title  insurance.  In 
discussing  the  measure  of  damages  on  a  policy  of  title  insurance, 
it  must  always  be  borne  in  mind  that  the  amount  of  the  re- 

-*  Title  Guarantee  Co.  v.  Wrenn,  The  right  to  build  a  party  wall  on 

.35    Ore.    62;     56     Pae.     Rep.     271  adjoining  property  is  given  by  stat- 

(1899).  ute  in  Ponn.sylvania. 

■•isTliomas    v.    Tradesmen's    Trust  -cCaulor  v.  Solicitor's  Co.,  9  Pa. 

Co.,  7   Pa.  Dist.   Rep.   375    (1897).  Co.  C.  Rep.  634   (1891). 


MEASURE  OF  DAMAGES.  181 

covery  cannot  exceed  the  maximum  amount  of  insurance  pro- 
vided for  in  the  contract.  The  real  measure  of  damages  for 
the  loss  may  exceed  that  amount,  but  the  amount  of  the  recovery 
on  the  contract  must  be  limited  by  its  provisions.  In  one  case 
this  doctrine,  which  seems  to  be  elementary,  was  expressly 
repudiated,  but  the  ease  should  not  be  followed.^^  Where  the 
insured  purchased  the  property  described  in  the  policy  issued 
to  him,  and  soon  afterward  the  title  proved  to  be  wholly  de- 
fective, the  measure  of  damages  was  held  to  be  the  price  paid 
for  the  property."*  In  another  case  it  was  held  that  where 
there  is  a  total  failure  of  the  title  insured  there  is  but  one 
measure  of  damages  to  be  applied,  and  that  is  the  value  of 
the  property  lost.-^  Where  after  the  issue  of  the  policy  the 
title  proves  defective,  or  a  prior  incumbrance  must  be  removed, 
the  insured  is  entitled  to  recover  the  necessary  cost  and  expense 
incurred  by  him  in  curing  the  defect  or  removing  the  lien.^*' 

§  176.  Measure  of  damages  on  guaranty  of  correctness  of  cer- 
tificate of  title.  Where  a  certificate  of  title  is  guaranteed  to  be 
correct,  and  it  is  in  fact  incorrect,  there  is  an  immediate  breach 
on  the  delivery  of  the  guaranty,  and  a  cause  of  action  at  once 
arises  against  the  guarantor.  If  the  person  guaranteed  has 
sustained  no  loss  on  account  of  the  breach  of  the  guaranty,  it 
is  doubtful  whether  he  may  recover  more  than  nominal  damages, 
but  where  he  has  sustained  a  loss,  he  is  entitled  to  the  same 
measure  of  damages  as  is  applied  in  cases  of  loss  under  a  title 
insurance  policy. 

§  177.  Statute  of  limitations  on  a  policy  of  insurance.  A 
contract  of  insurance  is  a  contract  of  indemnity,  and  it  is  one 
of  the  elementary  characteristics  of  the  contract  of  indemnity 
that  no  cause  of  action  arises  under  it  until  the  insured  has 
sustained  a  loss.  Under  it  there  can  be  no  contention  that  a 
cause  of  action  accrues  at  the  date  of  the  delivery  of  the  policy 

27Quigley  v.  Title  Co.,  60  Minn.  29  Gauler  v.  Solicitor's  Co.,  9  Pa. 

275;    62   N.   W.   Rep.   287    (1895);  Co.  C.  Rep.  634   (1891). 

64  Minn.   149;   66  N.  W.   Rep.  364  so  Minn.  Title  Ins.  Co.  v,  Drexel, 

(1896).     See  note  at  §  165.  70  Fed.  Rep.  194;    17  C.  C.  A.  56; 

28Ehmer  v.  Title  Guar.  Co.,  156  36  U.  S.  App.  50   (1895),     German 

N.Y.  10;   50  N.  E.  Rep.  420    (1898);  Am.  Title  &  Trust  Co.   v.   Citizens 

affirming  34  N.  Y.  Supp.  1132;   89  T.  &  T.   Co.,   190   Pa.   St.  247;   42 

Hun  120  (1895).  Atl.  Rep.  682    (1899). 


182  TITLE  INSURANCE. 

and  not  at  the  time  of  the  loss,  for  actual  damage  must  have 
been  sult'ered  before  there  is  any  right  to  compensation  or 
redress.  The  indemnity  in  title  insurance  is  not  against  defects 
in  the  title  or  prior  incumbrances,  but  is  against  the  assertion 
of  such  or  other  claims  or  rights  in  the  property  and  the  loss 
which  may  be  occasioned  thereby.  A  defect  in  the  title  or  a 
prior  incumbrance  may  exist  at  the  time  of  the  delivery  of  the 
policy  of  title  insurance,  but  no  claim  against  the  company 
arises  under  it  until  the  adverse  claim  against  the  property  is 
actually  asserted  in  court.  Then,  if  there  is  a  contract  on  the 
part  of  the  company  to  defend,  the  insured  may  call  on  the 
company  to  conduct  the  defence,  and  it  must  be  given  time 
and  opportunity  to  defend  against  the  claim.  If  the  claim  is 
established  as  the  result  of  the  litigation,  and  the  insured  is 
required  to  pay  out  money  to  perfect  his  title  or  to  remove  a 
lien,  he  has  a  complete  cause  of  action  on  his  policy.  From 
this  brief  statement  of  the  nature  and  conditions  of  the  contract, 
it  is  evident  that  the  statute  of  limitations  on  a  policy  of  title 
insurance  does  not  begin  to  run  until  the  insured  has  actually 
sustained  a  loss  for  which  he  is  entitled  to  indemnity  under  the 
terms  of  the  contract.^^ 

§  178.  Statute  of  limitations  on  guaranty  that  certificate  of 
title  is  correct.  Where  a  company  issues  a  mere  certificate  of 
title  and  guarantees  that  it  is  correct,  any  breach  of  the  contract 
is  founded  on  the  error  in  the  certificate,  and  is  complete  when 
the  contract  of  guaranty  is  delivered.  The  statute  of  limita- 
tions begins  to  run  from  the  date  of  the  delivery  of  such  a 
contract  of  guaranty,  even  though  no  special  damage  results 
until  long  after  it  is  delivered.  Such  a  contract  of  guaranty 
is  not  a  continuing  one,  on  which  a  new  cause  of  action  accrues 
whenever  special  damage  is  suffered  by  its  breach.  The  cause 
of  action  is  the  breach  of  the  guaranty  and  not  the  consequential 
damage  resulting  therefrom,  and  the  statute  begins  to  run  from 
the  time  of  the  breach  and  not  from  the  time  of  the  consequen- 
tial damage.^- 

31  Purcell  V.  Land  Title  Co.,  94  (1902).  Schade  v.  Gehner,  133  Mo. 
Mo.  App.  5;  07  S.  W.  Rep.  726  252;  34  S.  W.  Rep.  576  (1895). 
(1902).  Lattin    v.    Gillette,    95    CaL    317; 

32  See  Purcell  v.  Land  Title  Co.,  30  Pac.  Rep.  545;  29  Am.  St.  Rep.  , 
94  Mo.  App.  5;  67  S.  W.  Rep.  726  115  (1892).    Lawall  v.  Gromau,  180 


PARTY  DEFENDANT.  183 

§  179.  Title  insurance  company  as  a  party  defendant.  Where 
a  title  insurance  company  has  an  interest  in  the  real  estate  which 
is  the  subject  of  litigation,  it  is  a  necessary  party  to  a  com- 
plete remedial  action,  but  it  is  not  entitled  to  be  made  a  party  de- 
fendant to  an  action  involving  the  title  to  or  a  lien  on  real 
estate,  merely  because  it  has  an  interest  in  the  title  from 
having  insured  it.  The  subject  of  such  an  action  is  the  real 
estate,  and  in  this  the  insurance  company  has  no  interest.  Its 
interest  is  only  in  the  question  involved  in  the  action,  and 
this  is  not  such  an  interest  as  is  covered  by  a  statute  directing 
that  all  parties  interested  in  the  property  in  controversy  be 
made  parties  defendant  in  a  suit.  A  company  which  has  in- 
sured the  title  to  the  property  which  is  the  subject  of  an  action 
may  protect  its  interests  through  the  insured,  and  it  thus  has 
an  opportunity  to  protect  its  interests  without  being  made  a 
defendant.^^ 

§  180.  Representative  character  of  party  defendant.  A  re- 
ceiver of  all  the  property  of  a  judgment  defendant,  appointed 
by  the  court  in  a  proper  proceeding,  is  invested  with  the  abso- 
lute title  to  all  the  property  by  a  conveyance  of  it  by  the  debtor, 
made  to  him  voluntarily  or  in  pursuance  of  an  order  of  the 
court.  Where  he  is  made  party  defendant  in  foreclosure  by 
his  individual  name,  followed  by  the  word  "receiver"  only, 
and  he  appears  generally  by  attorney,  he  becomes  a  party  to  the 
suit  in  his  representative  capacity  and  as  such  receiver  is  bound 
by  the  judgment  therein.^* 

§  181.  Right  of  proposed  insurer  to  examine  the  records.  A 
corporation  employed  to  examine  the  title  to  any  certain  piece 
of  real  estate  is  subrogated  to  the  right  of  its  employer  to  have 
access  to  the  records,  and  the  fact  that  it  contemplates  the  issue 

Pa.   St.   532;    37  Atl.  Rep.  98;    57  Townshend,    112   N.    Y.   93;    19    N. 

Am.  St.  Rep.   662    (1897).     Fox  v.  E.   Rep.   424    (1889),  where  a   gon- 

Thibault,   33   La.   Ann.   32    (1881).  eral    assignee    in    bankruptcy    was 

Provident   Trust   Co.   v.   Wolcott,   5  made  defendant,  without  any  addi- 

Kan.    App.    473;    47    Pac.    Rep.    8  tion     whatever     to     his     individual 

(1895).  name,    and    he    appeared    generally 

33  Russ    V.    Stratton,    28    N.    Y.  by   an   attorney;    it   was   held   that 

Supp.  392;   8  Misc.  Rep.  6    (1894).  the   foreclosure   was    insufificient    to 

3*  Graham   v.   Title   Ins.    Co.,   46  bar    the    equity    of    redemption    of 

N.    Y.    Supp.    1055;    20   App.    Div.  such  assignee. 
440    (1897).      But   see   Landon   v. 


184  TITLE  INSURANCE. 

of  a  policy  of  insurance  on  the  title  to  the  property,  in  case 
the  title  is  found  to  be  satisfactory,  does  not  detract  from  the 
right  of  access.  Notwithstanding  the  proposed  contract  of  in- 
surance, the  examiner  is  still  acting  for  the  interested  person, 
in  substantially  the  same  manner  as  he  would  act  in  the  absence 
of  such  a  contract.  The  real  occasion  and  necessity  for  the 
examination  of  the  records  for  the  purpose  of  ascertaining  the 
true  state  of  the  title  and  the  existence  or  non-existence  of  liens 
on  it  is  not  done  away  with  by  the  mere  fact  that  the  examiner 
proposes,  if  the  title  is  satisfactory,  to  issue  a  policy  of  title 
insuranee.^'^ 

§  182.  Constructive  notice  of  the  public  records.  Under  the 
recording  laws  the  prevailing  doctrine  is  that  the  recording 
of  an  instrument  by  the  grantee  is  a  declaration  by  him  of  his 
interest  in  the  land  therein  described  to  all  persons  subsequently 
dealing  with  it.  He  is  estopped,  as  against  one  who  has  dealt 
with  the  premises  relying  on  the  record,  to  assert  that  his 
interest  is  greater  or  his  lien  more  onerous  than  was  de- 
scribed in  the  record  of  such  instrument.  Subsequent  pur- 
chasers or  incumbrancers  may  lawfully  assume  that  the  title 
is  completely  disclosed  on  the  records,  unless  there  is  some  cir- 
cumstances which  they  are  bound  to  take  notice  of  and  which 
should  apprise  a  reasonable  and  prudent  man  that  the  records 
are  defective  on  the  very  point  of  error.^^  An  insurance  com- 
pany which  has  insured  the  title  of  a  subsequent  purchaser  or 
incumbrancer,  relying  on  the  public  records,  is  entitled  to  in- 
voke this  doctrine  through  the  insured  and  thus  protect  itself 
and  him.  If  the  record  of  an  instrument  may  not  be  relied 
on  as  showing  its  contents  and  its  effect  on  the  title,  title  in- 
surance ceases  to  apply  to  a  situation  as  it  exists  at  the  time 
the  policy  is  issued,  and  becomes  a  wager  on  the  correctness  of 
the  public  records  and  the  validity  of  the  title. 

3BWest  Jersey  Title  Co.  v.  Bar-  Rep.    .304     (1877).       Jones    v.    Mc- 

ber,  49  N.  J.  Eq.  474;  24  Atl.  Rep.  Narrin,   68   Me.   334;    28   Am.    Rep. 

381    (1892).     See  §  90.  66    (1878).     Stewart  v.  Walker, 

30  .Johnson  v.  Hess,  126  Iml.  298;  Neb.           ;     113    N.    W.    Rep.    814 

25  N.  E.  Rep.  44.5    (1890).     Taylor  (1907).    See  §  11. 
V.  Harrison,  47  Texas  454;  26  Am. 


APPENDIX 


Ko. 


Pbomise 


Owner's  Application. 

premium  rates  cover  oxly  the  title  at  date  of  application. 

Chicago, , 190. 

The  undersigned  hereby  applies  to  the 

Chicago  Title  and  Trust  Company 
for  a  Guaranty  Policy  in  ita 

usual  form,  in  the  sum  of $. 

upon  the  title  to  the  lands 
hereinafter  described. 

It  is  agreed  that  the  fol- 
lowing statements  are  cor- 
rect and  true,  to  the  best 
of  applicant's  knowledge  or 
belief,  and  that  any  false 
statements  or  any  suppres- 
sion of  any  material  infor- 
mation shall  avoid  said  pol- 
icy. 


Date  to  be  covered 


No.  ABS.  left 
Box    


Premium 


Continuation  fee,  $. 


Recording  fees,     $. 


Description  of  premises,  includ- 
ing   description    of    improve- 
ments, with  street  number. 

Size  of  lot 

feet  front  by            feet  deep. 

In  possession  of 

Claiming  under 

Title  now  vested  in 

Party  to  be  guaranteed. 

His  [or  her]  address. 

(If    title    in    woman,    maiden 

name.) 
His  [or  her]  occupation. 
Is  he  a  citizen  of  the  U.  S.? 

Married day  of in 

Estate  or  interest  to  be  guar- 
anteed. 
Value  of  property. 

Land,  $                  Improvements,  $ 

If  estate  is  not  vested  in  party 
whose  title  is  to   be  guaran- 
teed, state  how  same  is  to  be 
vested. 

By                               Deed  from 
to 

Incumbrances. 

Taxes    and    assessments   which 
are   liens. 

Taxes   for   the   year    1...    and    1...,   and 
special  assessment  for 

Adverse  claims  or  objections  to 
title,  known  or  rumored. 

185 


1S6 


APPENDIX. 


The  applicant  hereby  agrees  that  if,  before  the  delivery  of  the  policy, 
he  shall  liavo  any  further  knowledge  or  inforrnulion  as  to  defects,  objec- 
tions, liens  or  incumbrances  all'ecting  the  title  to  said  premises,  he  will 
at  once  fully  make  known  the  same  to  the  Company. 

It  is  understood  by  the  applicant  that  the  Company  will  not  by  its 
policy  guarantee  against  rights  or  claims  of  parties  in  possession,  not 
shown  of  record. 

if  the  Company,  after  examination,  shall  decline  to  issue  the  policy  on 
account  of  defects  in  the  title,  the  applicant  hereby  agrees  to  pay  the 
necessary  expenses  incurred  by  the  Company  in  making  such  examination. 

Applicant, 

Addbess    ; 

When  application  is  made  by  a 

person  other  than  the  one  to  J-         On  behalf  of. 

be  guaranteed. 


No. 


Promise 


Date  to  be  Covered 


No.  Abs.  Left. 


Box 


Mortgage  Application. 

Chicago,  190. 

The  undersigned  hereby  applies  to  the 

Chicago  Title  and  Trust  Compant 
for  a  Guaranty  Policy  in  its 

usual  form,  in  the  sum  of        ...     t..     ..      .     $. 
upon    the   title    to    the    fol- 
lowing described  lands. 

It  is  agreed  that  the  fol-  Premium,  $.. 

lowing   statements   are    cor-  ' 

rect  and  true,  to  the  best  of 
the  applicant's  knowledge  or 
belief.  Recording  fees,  $ . ., 


Description  of  premises,  includ- 
ing House  No ...  .  and  a  de- 
scription of  improvements. 


In  possession  of 


Estimate  of  value 

Party  to  be  guaranteed  and 
nature  of  his  estate  or  in- 
terest. 


Instrument  conveying  estate  to 
be  guaranteed. 


Address  and  occupation  of 
grantor  in  above  incum- 
brance. 


Is  title  now  vested  in  grantor 
in  above  incumbrance?  If 
not,  state  wlien  and  how 
same  will   be  vested  in  him. 


Incumbrances. 


Ground,  $ 


Improvements,  $ 


Mortgage  |  ^^^^ executed  by. 

to  as 

to  secure  $ 


To  be  vested  in by  deed  from 

to  be  handed 

to  you  for  record  on  or  about 


APPENDIX.  187 

The  applicant  hereby  agrees  that  if,  before  the  delivery  of  the  policy,  he, 
or  his  agent,  should  have  any  further  knowledge  or  information  as  to 
defects,  objections,  liens  or  incumbrances,  affecting  the  title  to  be  guaran- 
teed, he  will  at  once  fully  make  known  the  same  to  the  Company. 

If  the  Company,  after  examination,  declines  to  issue  the  policy  on 
account  of  defects  in  the  title,  the  applicant  agrees  to  pay  the  necessary 
expenses  incurred  by  the  Company  in  making  such  examination. 

Applicant, 

Address    


FORM  A. 

Capital,     .     .     $5,000,000 

CHICAGO  TITLE  AND  TRUST  COMPANY 

Of  Chicago,  Illinois. 

No Amount  $ 

This  Guarantee  Policy  "Witnesseth,  that  the 

Chicago  Title  and  Trust  Company, 

In  consideration  of  the  sum  of Dollars,  to  it  in  hand 

paid,  doth  hereby  guarantee  (the  owner),  heirs  or  devisees,  or 
any  person  or  persons  to  whom  this  policy  shall  be  transferred, 
with  the  assent  of  the  Company  endorsed  hereon,  against  all 

loss  or  damage  not  exceeding Dollars,  which  the  said 

party  guaranteed  shall  sustain  by  reason  of  defects  in  the  title 
of  the  party  guaranteed,  as  set  forth  in  Schedule  A,  hereunto 
annexed,  to  the  real  estate  or  interest  therein,  described  in  said 
Schedule  A,  or  by  reason  of  liens  or  incumbrances  affecting  the 
same,  at  the  date  hereof,  excepting  only  such  liens,  incumbrances 
and  other  matters  as  are  set  forth  in  Schedule  B,  hereto  an- 
nexed, subject  to  the  conditions  and  stipulations  hereto  annexed 
and  made  a  part  of  this  policy. 

This  policy  is  issued  upon  application  by  or  on  behalf  of  the 

party  guaranteed,  numbered which  application  shall  be 

held  against  all  parties  claiming  hereunder  to  be  a  warranty  of 
the  facts  therein  stated. 

In  Witness  Whereof,  the   Chicago  Title  and  Trust 
Company  hath  caused  its  corporate  seal  to  be  hereto 

affixed  and  these  presents  to  be  signed  by  its 

President  and  attested  by  its Secretary,  this 

day  of in  the  year  of  our  Lord  one 

thousand  nine  hundred  and 

President. 

Attested : 

, Secretary. 


188 


APPENDIX. 


SCHEDULE  A. 
1. 

The  estate  or  interest 
of  the  party  guaranteed 
covered  by  this  policy. 
2. 

Description  of  the  real 
e-:tate  in  respect  of 
which  this  policy  is  is- 
sued. 

SCHEDULE  B. 

Showing  estates,  or  defects  in  title,  and  liens,  charges  and 
incumbrances  thereon,  which  do  or  may  now  exist,  and  against 
which  the  Company  does  not  guarantee. 

1.  Rights  or  claims  of  parties  in  possession  not  shown  of  rec- 
ord and  questions  of  survey. 

2. 

3. 

4. 


CONDITIONS  AND  STIPULATIONS  OF  THIS  POLICY. 


1.  The  Chicago  Title  and  Trust 
Company  shall  have  the  right  to, 
and  will,  at  its  own  cost  and 
charges,  defend  the  party  guaran- 
teed in  all  actions  of  ejectment  or 
other  action  or  proceeding  founded 
upon  a  claim  of  title,  incumbrance 
or  defect  which  existed  or  is  claimed 
to  have  existed  prior  in  date  to 
this  policy  and  not  excepted  here- 
in ;  reserving,  however,  the  option 
of  settling  the  claim  or  paying  this 
policy  in  full;  and  the  payment 
or  tender  of  payment  to  the  full 
amount  of  this  policy  shall  deter- 
mine all  liability  of  this  company 
tliereunder.  In  case  any  such  ac- 
tion or  proceeding  shall  be  begun, 
it  shall  be  the  duty  of  the  party 
guaranteed  at  once  to  notify  the 
company  thereof  in  writing,  and 
secure  to  it,  when  practicable,  the 
right  to  defend  such  action  or  pro- 
ceeding, and  to  give  all  reasonable 
assistance  therein.  If  sucii  notice 
shall  not  be  given  to  the  company 
within  ten  days  after  summons  or 
other  process  in  such  action  or  pro- 
ceeding shall  be  served  upon  the 
party  guaranteed  in  person,  then 
all  liability  of  this  company  in  re- 
gard to  the  subject  matter  of  such 
action  or  proceeding  shall  cease  and 
be  determined. 


2.  Whenever  the  company  shall 
have  settled  a  claim  under  this  pol- 
icy, it  shall  be  entitled  to  all  rights 
and  remedies  which  the  party  guar- 
anteed would  have  had  against  any 
other  person  or  propei'ty  in  respect 
to  such  claim,  had  this  policy  not 
been  made,  and  the  party  guaran- 
teed undertakes  to  transfer  to  the 
company  such  rights  and  to  per- 
mit it  to  use  the  name  of  the  party 
guaranteed  for  the  recovery  there- 
of. Any  sum  collected  on  such 
rights  over  and  above  the  amount 
of  loss  paid  by  said  company,  shall 
belong  and  on  demand  shall  be  paid 
to  the  party  guaranteed.  The  party 
guaranteed  warrants  that  such 
rights  of  subrogation  shall  vest  in 
the  company  unafTected  by  any  act 
of  the  party  guaranteed. 

3.  Nothing  contained  in  this  pol- 
icy shall  be  construed  as  a  guaran- 
tee against  loss  or  damage  by  rea- 
son of  fraud  on  the  part  of  the 
party  guaranteed ;  or  by  reason  of 
claims  undisclosed  of  record  arising 
under  any  act  done  or  trust  rela- 
tionship created,  sufTered  or  per- 
mitted by  said  party;  or  by  reason 
of  tlie  fact  that  said  party  was  not 
a  purchaser  for  value,  or  that  said 
party  contravened  the  laws  of  the 
United    States    establishing    a    uni- 


APPENDIX, 


189 


form  system  of  bankruptcy  in  hia 
acquisition  of  the  estate  or  interest 
hereby  guaranteed ;  nor  against  the 
rights  of  dower  and  homestead,  if 
any,  of  the  spouse  of  the  party 
guaranteed;  nor  will  this  company 
be  liable  in  any  event  for  any  loss 
or  damage  arising  from  the  refusal 
of  any  party  to  carry  out  any  con- 
tract to  purchase,  lease  or  loan 
money  on  the  estate  or  interest 
guaranteed. 

4.  Loss  or  damage  by  reason  of 
special  taxes,  special  assessments, 
water  rentals  or  water  taxes,  which 
have  not  been  confirmed  by  a  Court 
of  Record,  conveyances  or  agree- 
ments not  of  record  at  the  date  of 
this  policy,  or  mechanics'  liens  when 
no  notice  thereof  appears  of  record 
are  not  covered  by  it. 

5.  A  statement  in  writing  of  any 
loss  or  damage  for  which  it  is 
claimed  this  company  is  liable  shall 
be  furnished  to  the  company  within 
sixty  days  after  such  loss  or  dam- 

This  policy  necessarily  relates  solely  to  the  title  prior  to  and  including 
its  date. 

Assignments  of  this  policy  must  be  with  the  assent  of  the  company 
endorsed  hereon,  and,  to  protect  subsequent  purchasers  against  intermediate 
claims  or  losses,  must  be  continued  to  date. 

Trustees  and  Mortgagees,  to  receive  the  benefit  of  this  policy,  should 
obtain  a  "mortgagee's  policy"  hereon. 

In  assenting  to  assignments  no  liability  is  assumed  by  the  company  for 
defects  or  incumbrances  created  subsequent  to  the  date  of  this  policy. 


age,  and  no  right  of  action  shall 
accrue  under  this  policy  until  thirty 
days  after  such  statement  shall 
have  been  furnished,  and  no  re- 
covery shall  be  had  under  this  pol- 
icy unless  action  sliall  be  com- 
menced thereon  within  one  year 
after  the  expiration  of  said  last 
mentioned  period  of  thirty  days; 
and  a  failure  to  furnish  such  state- 
ment of  loss  or  damage,  and  to 
commence  such  action  within  the 
times  hereinbefore  specified,  shall  be 
a  conclusive  bar  against  the  main- 
tenance of  any  action  under  this 
policy. 

6.  All  payments  under  this  policy 
shall  reduce  the  amount  guaranteed 
pro  tanto,  and  no  payment  can  be 
demanded  without  producing  the 
policy  for  endorsement  of  such  pay- 
ment. If  the  policy  be  lost  or  de- 
stroyed, indemnity  must  be  fur- 
nished to  the  satisfaction  of  the 
company. 


ASSIGNMENT  OF  POLICY. 


Chicago, 190. .     For  Value  Received, 

hereby  assign  all  interest  in  this  policy  to 

Assented  to 190.  .  ' 

subject  to  foregoing  conditions. 

Chicago  Title  and  Trust  Company, 

by  


FORM  B. 

Capital,     .     .     $5,000,000 

CHICAGO  TITLE  AND  TRUST  COMPANY 

Of  Chicago,  Illinois. 

No.'. Amount  $ 

This  Guarantee  Policy  Witnesseth,  that  the 

Chicago  Title  and  Trust  Company, 

In  consideration  of  the  sum  of Dollars,  to  it  in  hand 

paid,  doth  hereby  guarantee  (the  purchaser),  heirs  or  devisees, 


V?0  APPENDIX. 

or  any  person  or  persons  to  ^vho^l  this  policy  shall  be  trans- 
ferred, with  the  assent  of  the  Company  endorsed  hereon,  against 

all   loss  or   damage   not   exceeding Dollars,   which   the 

said  party  guaranteed  shall  sustain  by  reason  of  defects  in  the 
title  of  (the  vendor),  to  the  real  estate  or  interest  therein,  de- 
scribed in  Schedule  A,  or  by  reason  of  liens  or  incumbrances 
affecting  the  same,  at  the  date  hereof,  excepting  only  such  liens, 
incumbrances  and  other  matters  as  are  set  forth  in  Schedule  B, 
hereto  annexed,  subject  to  the  conditions  and  stipulations  hereto 
annexed  and  made  a  part  of  this  policy. 

This  policy  is  issued  upon  application  by  or  on  behalf  of  the 

party  guaranteed,  numbered which  application  shall  be 

held  against  all  parties  claiming  hereunder  to  be  a  warranty  of 
the  facts  therein  stated. 

In  Witness  Whereof,  the   Chicago  Title  and  Trust 
Company  hath  caused  its  corporate  seal  to  be  hereto 

affixed  and  these  presents  to  be  signed  by  its 

President  and  attested  by  its Secretary,  this 

day  of .in  the  year  of  our  Lord  one 

thousand  nine  hundred  and. 

President. 


Attested ; 


Secretary. 


SCHEDULE  A. 

(same  as  in  form  a.) 

SCHEDULE  B. 
(same  as  in  form  a.) 

CONDITIONS  AND  STIPULATIONS  OF  THIS  POLICY. 

(THE    FIRST    SIX    ARE    AS    IN   FORM    A.      THE    SEVENTH    IS    AS    FOLLOWS:) 

without  notice  of  any  defect  in  said 
title  other  than  above  set  forth  in 
Schedule  B. 


7.  This  policy  shall  not  have  any 
force  or  effect  until  the  party  guar- 
anteed shall  acfjuire  said  title  as  a 
bona  fide  purchaser  for  value  and 


POEM  C. 

Capital,     .      .     .$5,000,000 

CHICAGO  TITLE  AND  TRUST  COMPANY 

Of  Chicago,  Illinois. 

No Amount  $ 

This  Guarantee  Policy  Witnesseth,  that  the 

Chicago  Title  and  Trust  Company, 

In  consideration  of  the  sum  of Dollars,  to  it  in  hand 

paid,  doth  hereby  guarantee  and  agree  that  it  will  pay  to 

the  trustee  named  in  a  certain  trust  deed,  executed 

by [a  further  description  of  which  said  trust 


APPENDIX. 


191 


deed  is  given  in  Schedule  A,  hereunto  annexed],  for  the  use 
and  benefit  of  the  owner  of  the  indebtedness  described  in  said 

trust  deed,  all  less  or  damage,  not  exceeding Dollars, 

which  such  owner,  and  the  executors,  administrators  and  as- 
signs of  such  owner,  shall  sustain  by  reason  of  defects  in  the 

title  of as  set  forth  in  said  Schedule  A,  to  the 

real  estate  or  interest  tlierein,  described  in  said  Schedule  A,  or 
by  reason  of  liens  or  incumbrances  affecting  the  same,  at  the 
date  hereof,  excepting  only  such  liens,  incumbrances  and  other 
matters  as  are  set  forth  in  Schedule  B,  hereunto  annexed,  sub- 
ject to  the  conditions  and  stipulations  hereunto  annexed  and 
made  a  part  of  this  policy. 

In  Vv'itness  Whereof,  the   Chicago  Title  and  Trust 
Company  hath  caused  its  corporate  seal  to  be  hereto 

affixed  and  these  presents  to  be  signed  by  its 

President  and  attested  by  its Secretary,  this 

day  of in  the  year  of  our  Lord  one 

thousand  nine  hundred  and 

President. 

Attested : 

Secretary. 


SCHEDULE  A. 


The  estate  or  interest 
of  the  maker  of  the  trust 
deed  which  is  covered  by 
this  policy. 
2. 

Description  of  the  real 
estate  in  respect  of 
which  this  policy  is  is- 
sued. 

3. 

The  trust  deed  secur- 
ing the  indebtedness  of 
which  the  party  for 
whose  benefit  this  policy 
is  issued  is  the  owner. 


SCHEDULE  B. 

Showing  estates,  defects  or  objections  to  title,  and  liens, 
charges  and  incumbrances  thereon,  which  do  or  may  now  exist, 
and  against  which  the  Company  does  not  guarantee. 

1. 

2. 

3. 


192 


APPENDIX. 


CONDITIONS  AND  STIPULATIONS  OF  THIS  POLICY. 


1.  The  Chicago  Title  and  Trust 
Company  shall  have  the  right  to, 
and  will,  at  its  own  cost  and 
cliarges.  defend  the  party  jjuaian- 
teod  and  the  owner  of  said  indebted- 
ness in  all  actions  of  ejectment  or 
other  action  or  procecdinj^  founded 
upon  a  claim  of  title,  incumbrance 
or  defect  which  existed  or  is  claimed 
to  have  existed  prior  in  date  to 
this  policy  and  not  exce])ted  herein; 
reserving,  however,  the  option  of  set- 
tling the  claim  or  paying  this  pol- 
icy in  full;  and  the  payment  or 
tender  of  payment  to  the  full 
amount  of  this  policy  shall  deter- 
ir.ine  all  liability  of  this  company 
thereunder.  In  case  any  sucli  ac- 
tion or  proceeding  shall  be  begun, 
it  shall  be  the  duty  of  the  party 
guaranteed  and  the  owner  of  said 
indebtedness  at  once  to  notify  the 
company  thereof  in  writing,  and 
secure  /to  it,  when  practicable,  the 
right  to  defend  such  action  or  pro- 
ceeding, and  to  give  all  reasonable 
assistance  therein.  If  such  notice 
shall  not  be  given  to  the  company 
within  seven  days  after  the  service 
of  the  first  summons  or  other  pro- 
cess in  such  action  or  proceeding, 
then  all  liability  of  this  company 
in  regard  to  the  subject  matter  of 
such  action  or  proceeding  shall  cease 
and  be  determined ;  provided,  hoio- 
cver,  that  failure  to  notify  shall  in 
no  case  prejudice  the  claim  of  the 
party  guaranteed  if  neither  said 
party  nor  the  owner  of  said  indebt- 
edness shall  be  a  party  to  such  ac- 
tion or  proceeding,  nor  served  with 
summons  therein,  nor  have  any 
knowledge  of  such  action  or  pro- 
ceeding. 

2.  Whenever  the  company  shall 
have  settled  a  claim  under  this  pol- 
icy, it  shall  be  entitled  to  all  rights 
and  remedies  which  the  party  guar- 
anteed and  the  owner  of  said  in- 
debtedness would  have  had  against 
any  other  person  or  property  in  re- 
spect to  such  claim,  had  this  policy 
not  been  made,  and  the  party  guar- 
anteed undertakes  to  transfer  or 
cause  to  be  transferred  to  it  such 
rights,  together  with  the  right  to 
use  the  name  of  the  ])arty  guaran- 
teed and  the  name  of  the  owner  of 


said  indebtedness,  when  necessary 
for  the  recovery  thereof,  such  rights 
of  subrogation  to  vest  in  the  com- 
pany unaffected  by  any  act  of  the 
party  guaranteed  or  the  owner  of 
said  indebtedness ;  but  such  subro- 
gation and  transfer  shall  be  in  sub- 
ordination to  the  claim  of  suc!i 
owner  to  receive  and  be  fully  paid 
the  amount  of  principal  and  inter- 
est and  other  moneys,  if  any  there 
be,  secured  by  said  trust  deed. 

3.  Payment,  discharge  or  satisfac- 
tion of  the  said  indebtedness  secured 
by  the  said  trust  deed,  except  by 
foreclosure,  shall  fully  terminate, 
avoid  and  annul  this  policy  and  all 
liability  of  the  company  thereunder. 

4.  Nothing  contained  in  this  pol- 
icy shall  be  construed  as  a  guaran- 
tee against  defects  or  incumbrances 
created  subsequent  to  the  date  here- 
of, nor  will  this  company  be  liable 
in  any  event  for  any  loss  or  dam- 
age arising  from  the  refusal  of  any 
party  to  purchase  said  indebtedness 
or  the  evidences  thereof, 

5.  Loss  or  damage  by  reason  of 
special  taxes  or  special  assessments 
which  have  not  been  confirmed  by  a 
Court  of  rjeeord,  conveyances  or 
agreements  not  of  record  at  the  date 
of  this  policy,  or  mechanics'  liens 
when  no  notice  thereof  ai)pears  of 
record  are  not  covered  by  it. 

6.  It  shall  be  the  duty  of  the 
party  guaranteed  and  the  owner  of 
said  indebtedness,  within  thirty 
days  after  learning  of  any  claim  of 
title,  incumbrance  or  defect  not  ex- 
cepted in  this  policy,  and  before 
payment  or  settlement  of  the  same, 
to  notify  the  company  in  writing 
of  the  existence  of  such  claim,  in- 
cumbrance or  defect;  and  in  case 
any  suit  or  proceeding  shall  be  com- 
menced founded  on  any  such  claim, 
incumbrance  or  defect,  the  company 
sliall  have  the  right,  at  its  option, 
to  jiay  to  the  owner  of  said  indebt- 
edness the  amount  then  remaining 
unpaid  thereon,  togetlier  with  any 
other  moneys  secured  by  said  trust 
deed,  and  shall  thereupon  be  en- 
titled to  an  assignment  and  trans- 
fer of  said  indel)tedness  .ind  of  all 
instruments  evidencing  and  securing 
the   same,   and   such    payment  shall 


APPENDIX. 


193 


terminate  all  liability  under  this 
policy;  such  right  of  payment,  how- 
ever, to  be  exercised  within  ninety 
days  after  the  party  guaranteed 
shall  notify  the  company  in  writing 
of  tlie  pendency  of  such  suit  or  pro- 
ceeding. 

7.  A  statement  in  writing  of  any 
loss  or  damage  for  which  it  is 
claimed  this  company  is  liable  shall 
be  furnished  to  the  company  within 
sixty  days  after  such  loss  or  dam- 
age, and  no  right  of  action  shall 
accrue  under  this  policy,  until 
thirty  days  after  such  statement 
shall  have  been  furnished,  and  no 
recovery  shall  be  had  under  this 
policy  unless  action  shall  be  com- 
menced   thereon    within    one    year 


after  the  expiration  of  said  last 
mentioned  period  of  thirty  days; 
and  a  failure  to  furnish  such  state- 
ment of  loss  or  damage,  and  to 
commence  such  action  within  the 
times  hereinbefore  specified,  shall  be 
a  conclusive  bar  against  the  main- 
tenance of  any  action  under  this 
policy. 

8.  All  payments  under  this  policy 
shall  reduce  the  amount  guaran- 
teed pro  tanto,  and  no  payment  can 
be  demanded  without  producing  the 
policy  for  endorsement  of  such  pay- 
ment. If  the  policy  be  lost  or  de- 
stroyed, indemnity  must  be  fur- 
nished to  the  satisfaction  of  the 
company. 


rOEM  D. 

Capital     .      .     $2,000,000 
THE  LAND  TITLE  AND  TRUST  COMPANY, 
Of  Philadelphia,  Pennsylvania. 
This  Policy  of  Insurance  "Witnesseth  that 

The  Land  Title  and  Trust  Company, 

In  consideration  of  the  sum  of Dollars,  to  them  paid  by 

do  hereby  insure  the  said and 

all  persons  claiming  the  estate  and  property  hereinafter  men- 
tioned under by  descent,  by  will,  or  under  the  in- 
testate laws,  and  all  other  persons  to  whom  this  Policy  may  be 
transferred  with  the  assent  of  this  Company,  testified  by  the 
signature  of  the  proper  officer  of  this  Company  endorsed  hereon, 
that  the  title  of  the  Assured  to  the  estate,  mortgage,  or  interest 
described  in  Schedule  A  hereto  annexed,  is  good  and  marketable 
and  clear  of  all  liens  and  incumbrances  charging  the  same  at 
the  date  of  this  Policy,  saving  such  estates,  defects,  objections, 
liens  and  incumbrances  as  may  be  set  forth  in  Schedule  B,  or 
excepted  by  the  conditions  of  this  Policy  hereto  annexed  and. 
nereby  incorporated  into  this  contract — 

Liability  hereunder  shall  not  exceed Dollars,  and  any 

loss  shall  be  payable  upon  compliance  by  the  Assured  with  the 
conditions  hereto  attached  and  not  otherwise. 

In  Witness  Whereof,  the  Common  Seal  of  the  said  Company 

is  hereunto  affixed  this day  of in  the  year 

of  our  Lord  one  thousand  nine  hundred  and 

2nd    Vice-President 

Assistant   Secretary. 

Title  Officer. 

13 


/? 


194 


APPENDIX. 


SCHEDULE  A. 
1. 

The  Estate  or  interest 
of    the    Insured    covered 
by  this  Policy. 
2.* 

Description       of      the 
Property,     the     title     to 
which  is  insured. 
3. 

The  deed  or  other 
means  by  which  title  is 
vested  in  the  Insured. 

SCHEDULE  B. 

SHOWING 

Estates,  defects,  or  objections  to  title,  and  liens,  charges  or 
incumbrances  thereon  which  do  or  may  now  exist  and  against 
which  the  Company  does  not  agree  to  insure,  and  also  showing 
Special  Risks  insured  against. 

1. 

2. 

3. 


CONDITIONS  OF  THIS  POLICY. 


1.  Any  untrue  statement  or  sup- 
pression of  any  material  fact,  made 
by  or  with  the  knowledge  of  the 
Assured  before  the  issuing  of  the 
Policy,  shall  avoid  the  Policy;  but 
an  assignee  for  value  to  whom  the 
Policy  has  been  transferred  with 
the  consent  of  the  Company  en- 
dorsed thereon,  shall  not  be  affected 
by  any  untrue  statements  or  an- 
swers, or  suppressions  or  breach  of 
warranty  contained  in  the  applica- 
tion, of  which  such  assignee  was 
ignorant  at  the  time  the  assent  to 
the  transfer  was  endorsed  by  the 
Company. 

2.  The  Land  Title  and  Trust 
Company  will,  at  their  own  cost, 
defend  the  Assured  in  all  actions  of 
ejectment  or  other  proceedings 
founded  upon  a  claim  of  title,  lien, 
or  incumbrance  prior  in  date  to  this 
Policy,  and  not  accepted  therein. 
In  case  any  person  having  an  in- 
terest in  tills  Policy  shall  receive 
notice  or  have  knowledge  of  any 
such  action  or  proceeding,  it  shall 
be  the  duty  of  such  person  at  once 
to  notify  the  Company  thereof  in 
writing,  and  secure  them  the  right 


to  defend  the  action.  Unless  the 
Company  shall  be  so  notified  within 
fifteen  days,  the  insurance  shall  be 
void  as  to  such  person, 

3.  Where  the  liability  of  the  Com- 
pany is  solely  to  the  holder  of  a 
Policy  as  collateral  security,  such 
liability  shall  in  no  case  exceed  the 
amount  of  tlie  pecuniary  interest  of 
such  holder  in  the  property  de- 
scribed. Nor  shall  such  liability  in 
any  case  exceed  the  actual  value  of 
the  estate  or  interest  insured. 

4.  Defects,  liens  and  incum- 
brances created  or  suffered  by  the 
Assured,  or  for  which  the  Assured 
was  liable  or  responsible  at  the 
date  of  the  Policy,  are  excepted 
from  the  insurance. 

5.  Tliis  Policy  may  be  transferred 
as  follows,  viz:  — 

I.  As  collateral  security  to  mort- 
gagees, holders  of  ground-rents,  or 
others  interested  only  as  creditors 
in  the  title  insured. 

II.  If  it  shall  have  been  issued 
solely  upon  a  ground-rent,  mort- 
gage, or  other  incumbrance,  to  the 
Assignees  of  such  ground-rent,  mort- 
gage or  incumbrance. 


APPENDIX. 


195 


III.  If  it  shall  have  been  issued 
to  cover  some  special  risk,  the  in- 
surance against  such  risk  may  be 
transferred, 

IV.  In  case  of  transfers  of  the 
Policy,  defects  and  incumbrances 
arising  after  the  date  of  the  Policy, 
or  created  or  suffered  by  the  As- 
sured, are  not  to  be  deemed  cov- 
ered by  the  contract,  and  no  trans- 
fer will  be  valid  until  it  shall  have 
been  approved  by  the  Company,  and 
such  approval  may  be  refused  if 
not  applied  for  within  thirty  days 
after  the  conveyance  or  assignment 
of  the  interest  insured.  The  Com- 
pany will  be  entitled  to  a  fee  of  one 
dollar  for  each  transfer  approved. 

6.  All  interest  in  this  Policy  (sav- 
ing that  for  damages  accrued)  shall 
cease  by  the  transfer  of  the  Policy, 
or  of  the  title  insured,  except  where 
the  transfer  of  the  Policy  is  au- 
thorized by  its  conditions,  and  has 
been  approved  as  provided  in  con- 
dition five.  Partial  transfers  of 
title  shall  reduce  the  insurance  in 
the  proportion  of  the  value  of  the 
estate  transferred  to  that  retained. 
Such  transfers  shall  not  affect  the 
interest  of  a  holder  of  this  Policy 
as  collateral  security,  with  the  con- 
sent of  the  Company  endorsed. 

7.  All  payments  under  this  Policy 
shall  reduce  the  amount  insured  pro 
tanto ;  and  no  payment  can  be  de- 
manded without  producing  the  Pol- 
icy for  endorsement  of  such  pay- 
ment. If  the  Policy  be  lost,  in- 
demnity must  be  furnished  to  the 
satisfaction  of  the  Company. 

8.  Wlienever  the  Company  shall 
have  settled  a  claim  under  this  Pol- 


icy, they  shall  be  entitled  to  all  the 
rights  and  remedies  which  the  As- 
sured would  have  had  against  any 
other  person  or  property  had  the 
Policy  not  been  issued.  The  As- 
sured undertakes  to  transfer  to  the 
Company  such  rights,  or  to  permit 
them  to  use  the  name  of  the  As- 
sured, for  the  recovery  thereof.  If 
the  payments  do  not  cover  the  loss 
of  the  Assured,  the  Company  shall 
be  interested  in  such  rights  with 
the  Assured  in  the  proportion  of 
the  amount  paid  to  the  amount  of 
the  loss  not  thereby  covered.  The 
Assured  warrants  tliat  such  right 
of  subrogation  shall  vest  in  the 
Company,  unaffected  by  any  act  of 
the  Assured. 

9.  If  claim  be  made  because  of 
unmarketability  or  defect  of  title, 
or  of  liens  or  incumbrances  not  ex- 
cepted in  the  Policy,  the  Company 
shall  have  the  right  to  take  the  es- 
tate or  interest  insured  at  its  then 
market  value,  irrespective  of  the  al- 
leged defect,  lien,  or  incumbrance, 
and  shall  be  entitled  to  a  convey- 
ance thereof,  with  proper  allowance 
for  all  defects,  liens,  or  incum- 
brances not  insured  against  by  the 
Policy.  And  no  action  shall  be 
brought  against  the  Company  for 
any  claim  under  this  Policy  until 
thirty  days  after  notice  in  writing 
of  such  claim. 

In  the  event  of  a  disagreement  as 
to  the  value,  the  same  shall  be  fixed 
by  a  majority  of  three  appraisers, 
one  chosen  by  the  Company,  one  by 
the  Assured  and  the  third  by  the 
two  thus  chosen;  the  valuation  thus 
fixed  shall  be  final  and  conclusive. 


A  Policy  of  Title  Insurance  necessarily  relates  solely  to  the 
title  prior  to  its  date,  and  is  not  extended  by  the  approval  of 
any  transfer  thereof.  Assignees  of  the  Insured  can  only  pro- 
tect themselves  against  intermediate  claims  and  losses  by  obtain- 
ing a  new  Policy. 


This  Policy 

IS  Transferred  as  Follows: 

DATE. 

ASSIGNOR. 

ASSIGNEE. 

WITNESS. 

APPROVED. 

INDEX 


[The  references  are  to  sections.] 
ABSTRACTER  OF  TITDES— 

duty  of,  1  to  17,  37. 

to  whom  liable,   18  to  26. 

suits  against,  27  to  36. 

suits  by,  37,  65,  74. 

county  officer  as,   38  to  44. 

compensation  of,  for  certified  printed  copies,  37. 

as  agent  of  interested  person,  57,  122. 

right  to  make  tract  indices,  58,  99,  133,  135. 

duty  to  custodian  of  records,  61. 

limitation  on  right  to  inspect  records,  62. 

right  to  search  records,  85,  94  to  99,  122,  130. 

may  act  as  agent  for  many  persons,  124. 

when  must  pay  fees,  122,   130,  133,   135. 

must  conduct  business  with  tract  index,  138. 

occupies  position  of  trust,  10. 

bad  feeling  between,  and  officers.  111. 
ACTUAL  NOTICE— 

takes  away  protection  of  recording  laws,  7. 

rule  as  to,   13. 
ATTORNEY— 

giving  opinion  of  title,  45  to  50. 

employed  by  one,  paid  by  another,  49. 

liability  to  third  persons,  50. 

as  agent  of  interested  person,  57,  94,  124. 
CERTIFICATE  OF  TITLE— 

by  lawyers  and  title  companies,  45. 

guaranteed  by  corporation,   150. 

differs   from  title  insurance,   150. 

measure  of  damages,  150,  176. 

statute  of  limitations,   150,   178. 
CERTIFICATE  TO  ABSTRACT— 

limiting  liability,  8,  9. 

is  for  use  of  employer  only,  18. 

plaintiff  must  have  relied  on,  28. 

conspiracy  to  defraud  by  means  of,  31. 

by  county  officer,  38  to  44. 

197 


198  INDEX. 

[The  references  are  to  sections.'] 
COJklMOX  LAW  RIGHT  OF  INSPECTION— 

generally,  86  to  92,   106. 

right  of  ollicer  to  fees,  123,  130,  133,  135. 
CONTRACT  OF  ABSTRACTER— 

to  use  skill,  I. 

to  have  knowledge,  2. 

to  examine  records,  3. 

to  set  out  instruments,  4. 

liability  for  errors,  5. 

docs  not  extend  to  third  persons,  18  to  26. 

statute  of  limitations,  36. 

measure  of  damages,  33. 

certified  printed  copies,  37. 

to  have  work  promptly  done,  37. 
CONVEYANCE— 

by  grantee  before  he  obtains  title,  6,  138. 

before  specified  date  of  continuation,  8. 
COUNTY  OFFICER— 

as  abstracter  of  titles,  38. 

misconduct  of,  43. 

mandamus,  65. 

injunction,  74. 

bad  feeling  toward  abstracters.  111. 
CUSTODIAN  OF  RECORDS— 

duty  of,  51  to  64. 

must  watch  and  preserve  records,  51. 

discretion  of,  52,   54. 

right  to  ask  concerning  purpose  of  examination,  55,  70. 

may  make  rules  and  regulations,  56. 

duty  to  abstracters,  57,  58. 

nature  of  duties,  59. 

payment  of  money  to,  for  privileges,  60. 

action  for  damages  against,  63,  64. 

mandamus,  65  to  76. 

injunction,   74. 

bad  feeling  toward  abstracters,  111. 

DEFINITION— 

of  abstract,  I. 

of  title  insurance,  148. 
FEES  OF  OFFICER— 

for  inspection  of  records,  122  et  seq. 

free  access  to  records,  132. 

no  service,  no  fees,  133  to  136. 
FRACTIONS  OF  A  DAY— 

rule  as  to,  6. 


INDEX.  199 

[TJie  references  are  to  sections.] 


GUARANTOR— 

abstracter  is  not,  1. 

one  giving  an  opinion  of  title  is  not,  48. 

of  certificate  of  title,  45,  150,  17G,  178. 

INCORPORATED  COMPANY— 

right  to  search  records,  9G,  97,  98,  181. 

INDEMNITOR— 

abstracter  is  not,   1. 

one  giving  opinion  of  title  is  not,  48. 

in  title  insurance,  150, 

INJUNCTION— 

to  determine  the  right  to  inspect  records,  74. 

JUDGMENT— 

omitted  from  search,  5,  28,  32. 
before  specified  date  of  continuation,   8. 
names  of  judgment  defendants,  11. 
is  a  general  lien,   11. 

LIABILITY  FOR  ERRORS— 
made  in  abstracts,  4,  5. 
certificate  limiting  liability,   8,  9. 
in  certificate  of  title,  45,  150,  176,  178. 
in  opinion  of  title,   45,   150,  176,  178. 
in  title  insurance  policy,  150. 

LINE  OF  TITLE— 

where  it  begins,  6,  7. 

MANDAMUS— 

against  custodian  of  records,  65  to  76. 
clear  legal  right,  66. 
foundation  for  action,  69. 
interest  of  petitioner,   72. 
is  proper  remedy,  74. 

MEASURE  OF  DAMAGES— 
against  abstracter,  33. 
duty  of  plaintiff,  34. 
against  conveyancer,  47. 
against  custodian  of  records,  63. 
on  certificate  of  title,  150,  176. 
on  title  policy,  175. 

MORTGAGE— 

omitted  from  abstract,  5,  33. 
by  grantee  before  he  obtains  title,  6. 
before  specified  date  of  continuation,  8. 
renewal  of,  172. 


200  INDEX. 

[The  references  are  to  sections.^ 
NAMES— 

of  judgment  defendants,  11  to  IG. 

foreign   names,    17. 
OPINION  OF  TITLE— 

by  lawyers,  45. 

guaranteed  by  corporation,  150. 

differs  from  title  insurance,  150. 

measure  of  damages,   150,  176. 

statute  of  limitations,   150,  178. 
PARTY  WALL— 

in  title  insurance,  173. 
PATENT    INDICES— 

right  to  examine,   78. 
PLEADING— 

in  suit  against  abstracter,  27,  28. 
PRIVITY  OF  CONTRACT— 

between  abstracter  and  third  persons,  19  to  26. 

PUBLIC  RECORDS— 

duty  of  custodian  of,  51. 

suppression  of,  under  order  of  court,  68. 

proper  demand  for  inspection  of,  55,  69,  70. 

general  right  of  inspection  of,  77  et  seq.,  112. 

nature  of,  77,  79. 

patent  indices,  78. 

all  public  records  alike,  79,  81. 

instruments  filed,  but  not  recorded,  82. 

comparative  needs  of  inspection,  80. 

what  is  included  in  right  of  inspection  of,  83. 

primary  purpose  of  records,  84. 

who  may  search,  85,  94  to  99,  112,  122. 

common  law  riglit  of  inspection,  86  to  90. 

dangers  and  inconveniences  in  examination  of,   107. 

making  tract  index  of,  99  et  seq. 

fees  of  oflicers,  122  et  seq. 

search  by  interested  persons,  89,  94,  122. 

mandamus  and  injunction,  65,  74. 

REC01?DER'S  OFFICE— 
primary  purpose  of,  84. 

RECORDING  LAWS— 

no  protection  against  actual  notice,  7. 

as  to  jiulgments,   11   to   17. 

ronstructivo  notice  of  records.  79,  84,   182. 

SEARCH  OF  1;EC0I;DS.     See  ADSTHACTn?.  of  Title. 
where  search  sliould  begin,  6,  7. 


INDEX.  201 

[The  references  are  to  sections.} 
SEARCH  FOR  RECORDS  —  Continued. 

from  specified  date,  8. 

differs  from  insuring  title,   151. 

by  incorporated  company,  96  to  98,  181. 
SOURCES  OF  TITLE. 

must  be  set  forth  in  abstract,  3. 
STATUTE— 

may  control  the  right  to  search,  85,  106. 

may  do  away  with  necessity  for  interest,  91,  92. 

necessary  for  preparation  of  tract  index,  99. 

giving  right  of  inspection  to  any  person,  100  et  seq.,  114  et  seq. 

is  not  declaratory  of  general  law,  105. 

should  be  liberally  construed,  106. 

giving  fees  to  officer,  122  et  seq. 

STATUTE  OF  LIMITATIONS— 

judgment  expiring  by,  32. 

in  action  against  abstracter,  35. 

on  certificate  of  title,   150,  178. 

on  title  policy,  177. 
TITLE  INSURANCE— 

definition  of,  148. 

is  not  a  wager,  149. 

does  not  supplant  covenants  of  warranty,  149. 

difi'ers  from  certificate  of  title,  150. 

founded  on  abstract  of  title,  151. 

extra  premium  for  known  risk,  152. 

defect  existing  at  date  of  policy,  153. 

forms  of  contract,   154. 

two  kinds  of  policies,  156. 

application  for  policy,  157,   158. 

stipulations  and  conditions  of  policy,  159. 

agreement  to  defend  insured,  165. 

subrogation,  166. 

defects  in  title  not  insured  against,  167. 

scope  of  contract,  169. 

reformation  of   policy,    170. 

renewal  of  mortgage,  172. 

party  wall,  173. 

defence  to  action  on  policy,  174. 

measure  of  damages,  175. 

statute  of  limitations,   177. 

insuring  company  as  defendant,   179. 

is  a  contract  of  indemnity,  150. 
TRACT  INDICES— 

right  of  abstracter  to  make,  58,  99,  ct  seq.,  100,  114,  122,  130. 


202  IKDEX. 

[The  references  are  to  sections.'] 
TRACT  INDICES  —  Continued. 

statute  necessary  to  give  right  to  make,  99. 

wiien  fees  must  be  paid  to  officer,  37,  122,  130,  133. 

generally  concerning,  137. 

are  a  necessity,  138. 

saves  time  and  records,  139. 

production  of,  in  court,  140. 

when  public  authority  may  establish,  141, 

right  to  copy  public  indices,  142. 

taxation  of,  143,  144. 

levy  of  execution  on,  145. 

mortgage  on  may  be  foreclosed,  147. 

may  not  be  copied,  146. 

attitude  of  officers  regarding,  111. 
TRUST  AND  CONFIDENCE— 

abstracter  occupies  position  of,  10. 


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